REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL MISC. APPLICATION NO. E014 OF 2024
(Coram: Andayi W. F., J.)
IN THE MATTER OF: CONTEMPT OF COURT PROCEEDINGS
BETWEEN
JAMAL ABDALLAH KIDYOGO.………………………….APPLICANT
AND
MSAMBWENI COMMUNITY DEVELOPMENT
AGREEMENT COMMITTEE (CDAC)…………………………1ST RESPONDENT
TAUHIDA SALIM ABDULRAHMAN..................................2ND RESPONDENT
MSHENGA VUYAA RUGA................................................3RD RESPONDENT
JUMA MAONE.................................................................4TH RESPONDENT
HAMISI KASSIM................................................................5TH RESPONDENT
BAKARI HAMISI...............................................................6TH RESPONDENT
MWANAKOMBO OMARI KILALO...................................7TH RESPONDENT
ROSE NZISA KYALO.........................................................8TH RESPONDENT
ALI ANDALLAH WEKO.....................................................9TH RESPONDENT
RAMADHAN MWINYI MATETE.....................................10TH RESPONDENT
SITI ALI KAPONDA..........................................................11TH RESPONDENT
MWANASHA KASEREGO BAKARI...................................12TH RESPONDENT
BAKARI ZAMU................................................................13TH RESPONDENT
BARUA MWAPUSHUA....................................................14TH RESPONDENT
(AS COMMITTEE MEMBERS OF MSAMBWEBNI CDAC)
AND
BASE TITANIUM LTD................................................1ST INTERESTED PARTY
CABINET SECRETARY FOR MINING, BLUE ECONOMY
AND MARITIME AFFAIRS.......................................2ND INTERESTED PARTY
REGIONAL MINING OFFICER, KWALE COUNTY....3RD INTERESTED PARTY
RULING
1. The applicant herein Jamal Abdallah Kidyogo instituted judicial review proceedings against the 1st respondent herein by way of an ex-parte Chamber Summons application dated 8th August 2024 seeking leave to apply for an order of certiorari to bring to this court to be quashed a decision made on 7th August 2024, by the 1st respondent removing the applicant as the chairman of the Msambweni CDAC Committee and further that the grant of leave herein operates as a stay of the decision of the 1st respondent made on 7th August, 2024.
2. The application was filed under certificate of urgency of the same date. It was supported by the affidavit of the applicant Jamal Abdallah Kidyogo
3. This court on 13th August 2024 in High Court Judicial Review Miscellaneous Application No. E004 of 2024 granted leave to the ex-parte applicant to file within 21 days, a substantive motion for judicial review proceedings seeking an order of certiorari against the respondent, Msambweni Community Development Agreement Committee (MCDAC) to quash the decision made on 7/8/2024 by the respondent removing the applicant as the chairman of the committee. The leave granted was also directed to operate as stay of the impugned decision of the respondent made on 7th August 2024. The court also directed that the respondents had 14 days from the date of service to respond to the motion.
4. The ex-parte applicant filed the substantive notice of motion dated 1st September 2024 on 12th September, 2024, seven days after the due date as directed by the court and through a different file HC JR Misc. Application No. E005 of 2024. The said motion dated 1st September 2024 and filed in court on 12th September 2024 was struck out by this court on 3rd November 2025 as incompetent for being filed outside the 21 days’ period stipulated under the law and as directed by the court at the leave stage.
5. At the same time of filing the substantive notice of motion that was subsequently struck out, the ex-parte applicant filed the present application dated 1st September 2024 seeking the following orders:
a) A temporary Injunction to freeze 1st Respondent’s Cooperative Bank Account No. 011…500 Account Name Msambweni Community Development Community Agreement Committee pending Hearing and determination of the application.
b) Summons be issued and date be granted for the personal attendance before this court for of the Committee members of the 1st Respondent, who are the 2nd to 14th Respondents herein, Tauhida Salim Abdulrahman, Mshenga Vuyaa Ruga, Juma Maone, Hamisi Kassim, Bakari Hamisi, Mwanakombo Omari Kilalo, Rose Nzisa Kyalo, Ali Abdallah Weko, Ramdhan Mwinyi Mwatete, Siti Ali Kaponda, Mwanasha Gaserego Bakari, Bakari Zamu And Barua Mwapashua, for hearing of the present application for contempt of court by the applicant in the Contempt Proceedings for being in breach and disobedience of the orders of the court issued on 13th August 2024 by Hon. Lady Justice Wendy Micheni, and to show cause why they should not be condemned to civil jail.
c) The said respondents, the cited contemnors herein do stand committed to civil jail for a period as the court may determine and/or pay punitive fine, for contempt of court in that the said Respondents willfully disobeyed the orders of the Court issued on 13th August 2024.
d) Costs of this application be awarded to the applicant.
6. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit of Jamal Abdallah Kidyogo, sworn on 1st September 2024 and two further affidavits, sworn on 14th October 2024. There is another further affidavit sworn on 28th October 2024 which learned counsel cites in the submissions as part of the application but that is not correct because this affidavit was in respect of a preliminary objection filed against the substantive notice of motion. It must have erroneously filed by counsel in the present application.
7. The grounds are that despite the 2nd to 14th Respondents as members of the 1st respondent having knowledge of the said court orders issued by this court on 13th August 2024, they totally disregarded the said orders and thereafter without any color of right, blocked the applicant from accessing the 1st Respondent’s office to resume his duties at its chairman which is a gross violation of the said orders.
8. Further that in blatant disregard of the orders the Respondents issued a letter dated 23rd August 2024 to the applicant requesting him to return office documents and assets. They had since removed the applicant as a signatory and have started misusing the funds in the bank Account.
9. Further that if the orders sought herein are not granted, there is a likelihood that the Respondents shall siphon money meant for the community and the orders sought shall be an academic exercise.
10. Most of the other grounds set out as supporting the application are actually submissions.
11. In the further affidavit, the applicant deposes that the respondent was duly served with the court process. He has annexed various affidavits if service to the application as proof of service. suit HCJR Misc E004 of 2024 Jamal Abdallah Kidyogo v. Msambweni Community Development Agreement Committee (CDAC). In those proceedings, only the 1st respondent was a party.
12. He deposes further that the 1st respondent was served with the order the subject of the present application but did not acknowledge service thereof. Subsequently, an email was sent through its e-mail address. The applicant therefore maintains that the respondents were aware of the court order but failed to obey it.
13. I do not understand why the applicant had to bring these proceedings in a different file other than the one in which the subject orders were made. It makes the work tedious having to keep checking for filed documents and orders from one file to the other when all of them could be neatly found in one.
14. The application is opposed by the 2nd to 14th respondents through a joint replying affidavit sworn on 29th September 2024 and the 1st Interested Party (IP) Base Titanium Limited through a replying affidavit sworn on 23rd October 2024 by Mwanaharusi Mohammed Khamisi, its Community Programs Manager.
15. The 2nd to 14th respondents depose that they were never served with the order of this court issued on 13th August 2024.
16. The IP on its part filed a lengthy affidavit in response to the application. That affidavit would have been appropriate if it was a response to the substantive notice of motion for Judicial Review and not the present application for contempt. The paragraphs of the affidavit relevant to the present application are 7, 8, 39 and 40 where Mwanaharusi deposes that she is a member of the 1st respondent committee and that members became aware about an application seeking judicial review orders against the Committee which they later discovered was case number E004 of 2024. However, the Committee members were not aware of the contents of the Court Order as the same was never served upon them.
17. The contempt application was argued by way of written submissions filed by learned counsels for the parties who also provided several authorities to back up their arguments.
18. The submissions filed by the respondents are in respect of the substantive notice of motion of Judicial Review seeking orders of certiorari and not on the present application for contempt of court. The respondents’ submissions are therefore not useful for the determination of this application.
19. I have considered the application and the affidavits in reply that were filed by the respondents and the IP in opposition thereto. I have also considered the submissions by the parties’ respective learned counsels and the authorities cited.
20. Although the applicant sought for an order of temporary injunction in the application, the submissions are only on the prayer for contempt of court. I therefore consider and find that the applicant abandoned the prayer for temporary order of injunction.
21. Learned counsel has set out two issues for the court’s determination which are whether the respondents are in contempt of the court orders issued on 13th August 2024 and whether the applicant is entitled to the orders sought.
22. The 1st IP on its part submitted four issues for determination viz:
a. Whether the decision, against which contempt is alleged, exists;
b. Whether the 1st IP’s Preliminary Objection dated 11th October 2024 ("the PO") has merit;
c. Whether the applicant has satisfied the test for grant of contempt orders; and
d. Whether the applicant has satisfied the test for grant of a temporary injunction.
23. As stated above, the prayer for temporary injunction was abandoned by the applicant and therefore issue No. (d) does not fall for determination. The preliminary objection was determined elsewhere and the same was sustained and therefore it is res judicata. As for issue No. (a), the same would have been appropriate if what was being considered herein was the substantive notice of motion for orders of certiorari. The same has been determined elsewhere together with the preliminary objection. The only issues that remains for determination is whether the applicant has satisfied the test for grant of an order of contempt of court against the respondents.
24. The law on contempt of court is now well settled and I do not need to belabor anything much on it. I am persuaded to follow the case of Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR), where the High Court, Mativo, J. (as he then was), citing the High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell (Eastern Cape Division Case No. 364 of 2005) held that in order to succeed in civil contempt proceedings, the applicant has to prove:
a. The terms of the order alleged to have been disobeyed.
b. Knowledge of these terms by the respondent; and
c. Failure by the Respondent to comply with the terms of the order.
25. In the case of Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) the Court of Appeal held that the standard of proof of contempt of court must be beyond a balance of probabilities but not beyond reasonable doubt. The Court of Appeal said:
“In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi – criminal in nature…”
26. The burden of proof of the contempt alleged against the respondents is on the applicant. as is provided for under section 107 of the Evidence Act (Cap. 80) Laws of Kenya that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
27. I am not satisfied that the applicant has discharged this burden of proof for several reasons.
28. The first issue to determine is the proof that the respondents were served with the orders sought to be enforced.
29. The orders complained of were issued by this court on 13th August 2024 where the court issued an order of stay of the decision of the 1st respondent as follows:
“The applicant is granted leave to apply for an order of Certiorari to bring to this Honourable court to quash the decision made on 7th August 2024, by the Respondent removing the Applicant as the Chairman of the Committee.
The substantive motion for Judicial Review be filed and served upon the respondent within the next 21 days from today.
The Respondents have 14 days to respond to substantive motion from the date of service
The grant of leave herein does operate as a stay of the decision made on 7th August, 2024 by the Respondent removing the Applicant as the Chairman of the Committee.”
30. As proof of service of the orders, the applicant relies on a letter dated 26th August 2024 from his advocates Mwangi Kihira & Co. Advocates to the 1st respondent, with attention to Rose Nzisa Kyalo as follows:
Ref: Request to Return Office Documents and Assets
Our Client: Jamal Abdallah Kidyogo
We refer to your letter dated 23.8.2024.
We wish to inform you that our client shall not be returning any office documents or assets reason being that your illegal decision to remove him from office was barred by Lady justice Wendy Micheni vide the court order dated 13.8.2024 in HCJRMISC/E004/2024 – JAMAL ABDALLAH KIDYOGO V CADAC MSAMBWENI AND BASE TITANIUM LTD. The same has been attached for ease of reference.
Kindly note that there are penal consequences for the disobedience of court orders. Our directions for your own good, are that you stop your illegal actions lest we file for contempt of court proceedings.
Be advised.
Regards
FOR MWANGI KIHIRA & CO. ADVOCATES
signed.
MWANGI. E
CC: CLIENT
BASE TITANIUM
HIGH COURT KWALE
ENCL: COURT ORDER DATED 5.8.2024
31. On the face of that letter it is indicated that the same was by “hand delivery” with “advance copy via e-mail,” which is given as cdacmsa2021@gmail.com.
32. I find that the letter is inadequate to prove that service of the relevant court order was made upon any of the respondents for several reasons.
33. Although generally addressed to the 1st respondent, it is to the attention of Rose Nzisa Kyalo. There is nowhere the letter indicates that the contents and annexures thereto should be brought to the attention of the other members of the 1st respondent. Therefore, assuming that the 1st respondent received the letter, read it and kept it, the applicant cannot show that in fact she shared the contents with the 2nd to 14th respondents. The letter in itself was not a court order and therefore even if Rose Nzisa read the contents she cannot be held to have disobeyed a court order.
34. More fundamentally, in relation to the orders that were allegedly annexed, the letter shows at the bottom that in fact, the court order enclosed was the one dated 5th August, 2024 and not the order the subject of the contempt proceedings which was issued on 13th August 2024. Therefore, assuming as the applicant wishes the court to believe that Rose Nzisa Kyalo shared the contents of the letter with the other respondents and therefore they had knowledge of the contents, the order that would have been brought to their attention was one allegedly dated 5th August 2024. I have perused the documents filed in Kwale HCJR MISC E004 of 2024 and I do not find any order issued on that date. In any case, it would not be the order the subject of the present application. In all the affidavits of service filed in that case, none relates to the orders issued on 13th August 2024.
35. I have looked at the received date stamp appearing on the order dated 13th August 2024 and filed herein by the applicant as proof of service of the order complained of. I note that the stamp is for the County Director of Environment, NEMA Kwale County who is not any of the respondents herein nor a party to these proceedings.
36. There is no other evidence of service of the order issued on 13th August 2024 upon any of the respondents that was allegedly breached by them.
37. There is no dispute that when the order was issued on 13th August 2024, the respondents had not appeared to the application and they were not represented by counsel. Therefore, they had no other means of getting knowledge of the orders other than being served personally.
38. As proof of the disobedience of the court orders, the applicant refers to the letter dated 23rd August 2024 addressed to the applicant by Rose Nzisa Kyalo, secretary of the 1st respondent. The letter refers to the removal of the applicant as chairperson of the 1st respondent during a special general meeting held on 1st August 2024 and requests him to return any office documents or assets that may still be in his custody by 26th August 2026.
39. The IP has maintained through the replying affidavit and the submissions by d counsel that in fact, the meeting was indeed held on 1st August 2024 and not 7th August 2024 as alleged by the applicant throughout all his applications. That argument would have held sway if the court was considering the substantive motion for judicial review. For now, it bears little relevance to the present application.
40. That letter does not indicate anywhere that after the meeting of 1st August 2024 (or 7th August 2024 as the applicant put it in his applications), that removed the applicant as chairperson of the 1st respondent, the members of the 1st respondent met again and made any other decision concerning him. It is apparent that the letter by the secretary was simply a follow-up of the meeting of 1st August 2024. Therefore, although the applicant deposes that the respondents disregarded the orders of 13th August 2024, there is no proof of any action taken by the respondents such as minutes of any meeting held and at which his issues were discussed.
41. It follows that there is no proof that the respondents did any act that was contrary to what the court order had prohibited them.
42. The applicant also alleges that the respondents blocked him from accessing the 1st respondent’s offices to resume his duties but does not state when this was done and by whom among the 2nd to 14th respondents.
43. The mischief that the law of contempt of court seeks to cure is deliberate disobedience of court orders. In the case of Samuel M. N. Mweru & others v National Land Commission & 2 others [2020] eKLR it was held that the breach complained of has to be both deliberate and mala fides. In this case I find that, even though the application is based on breach of the orders dated 13th August 2024 there is no affidavit of service filed to prove that the respondents had knowledge of the existence of these orders.
44. Consequently, I find that it has not been proved to the required standard that the respondents had knowledge of or proper notice of the terms of the orders complained of and that the respondents acted in deliberate disobedience of the court orders.
45. I find that the application has no merit and the same is dismissed with no orders as to costs.
46. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for Ex-parte Applicant.
N/A for the Respondent.
Mwango (Ms) for the 1st Interested Party.
N/A for the 2nd and 3rd IPs.
Ummu Court Assistant.
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL MISC. APPLICATION NO. E014 OF 2024
(Coram: Andayi W. F., J.)
IN THE MATTER OF: CONTEMPT OF COURT PROCEEDINGS
BETWEEN
JAMAL ABDALLAH KIDYOGO.………………………….APPLICANT
AND
MSAMBWENI COMMUNITY DEVELOPMENT
AGREEMENT COMMITTEE (CDAC)…………………………1ST RESPONDENT
TAUHIDA SALIM ABDULRAHMAN..................................2ND RESPONDENT
MSHENGA VUYAA RUGA................................................3RD RESPONDENT
JUMA MAONE.................................................................4TH RESPONDENT
HAMISI KASSIM................................................................5TH RESPONDENT
BAKARI HAMISI...............................................................6TH RESPONDENT
MWANAKOMBO OMARI KILALO...................................7TH RESPONDENT
ROSE NZISA KYALO.........................................................8TH RESPONDENT
ALI ANDALLAH WEKO.....................................................9TH RESPONDENT
RAMADHAN MWINYI MATETE.....................................10TH RESPONDENT
SITI ALI KAPONDA..........................................................11TH RESPONDENT
MWANASHA KASEREGO BAKARI...................................12TH RESPONDENT
BAKARI ZAMU................................................................13TH RESPONDENT
BARUA MWAPUSHUA....................................................14TH RESPONDENT
(AS COMMITTEE MEMBERS OF MSAMBWEBNI CDAC)
AND
BASE TITANIUM LTD................................................1ST INTERESTED PARTY
CABINET SECRETARY FOR MINING, BLUE ECONOMY
AND MARITIME AFFAIRS.......................................2ND INTERESTED PARTY
REGIONAL MINING OFFICER, KWALE COUNTY....3RD INTERESTED PARTY
RULING
1. The applicant herein Jamal Abdallah Kidyogo instituted judicial review proceedings against the 1st respondent herein by way of an ex-parte Chamber Summons application dated 8th August 2024 seeking leave to apply for an order of certiorari to bring to this court to be quashed a decision made on 7th August 2024, by the 1st respondent removing the applicant as the chairman of the Msambweni CDAC Committee and further that the grant of leave herein operates as a stay of the decision of the 1st respondent made on 7th August, 2024.
2. The application was filed under certificate of urgency of the same date. It was supported by the affidavit of the applicant Jamal Abdallah Kidyogo
3. This court on 13th August 2024 in High Court Judicial Review Miscellaneous Application No. E004 of 2024 granted leave to the ex-parte applicant to file within 21 days, a substantive motion for judicial review proceedings seeking an order of certiorari against the respondent, Msambweni Community Development Agreement Committee (MCDAC) to quash the decision made on 7/8/2024 by the respondent removing the applicant as the chairman of the committee. The leave granted was also directed to operate as stay of the impugned decision of the respondent made on 7th August 2024. The court also directed that the respondents had 14 days from the date of service to respond to the motion.
4. The ex-parte applicant filed the substantive notice of motion dated 1st September 2024 on 12th September, 2024, seven days after the due date as directed by the court and through a different file HC JR Misc. Application No. E005 of 2024. The said motion dated 1st September 2024 and filed in court on 12th September 2024 was struck out by this court on 3rd November 2025 as incompetent for being filed outside the 21 days’ period stipulated under the law and as directed by the court at the leave stage.
5. At the same time of filing the substantive notice of motion that was subsequently struck out, the ex-parte applicant filed the present application dated 1st September 2024 seeking the following orders:
a) A temporary Injunction to freeze 1st Respondent’s Cooperative Bank Account No. 011…500 Account Name Msambweni Community Development Community Agreement Committee pending Hearing and determination of the application.
b) Summons be issued and date be granted for the personal attendance before this court for of the Committee members of the 1st Respondent, who are the 2nd to 14th Respondents herein, Tauhida Salim Abdulrahman, Mshenga Vuyaa Ruga, Juma Maone, Hamisi Kassim, Bakari Hamisi, Mwanakombo Omari Kilalo, Rose Nzisa Kyalo, Ali Abdallah Weko, Ramdhan Mwinyi Mwatete, Siti Ali Kaponda, Mwanasha Gaserego Bakari, Bakari Zamu And Barua Mwapashua, for hearing of the present application for contempt of court by the applicant in the Contempt Proceedings for being in breach and disobedience of the orders of the court issued on 13th August 2024 by Hon. Lady Justice Wendy Micheni, and to show cause why they should not be condemned to civil jail.
c) The said respondents, the cited contemnors herein do stand committed to civil jail for a period as the court may determine and/or pay punitive fine, for contempt of court in that the said Respondents willfully disobeyed the orders of the Court issued on 13th August 2024.
d) Costs of this application be awarded to the applicant.
6. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit of Jamal Abdallah Kidyogo, sworn on 1st September 2024 and two further affidavits, sworn on 14th October 2024. There is another further affidavit sworn on 28th October 2024 which learned counsel cites in the submissions as part of the application but that is not correct because this affidavit was in respect of a preliminary objection filed against the substantive notice of motion. It must have erroneously filed by counsel in the present application.
7. The grounds are that despite the 2nd to 14th Respondents as members of the 1st respondent having knowledge of the said court orders issued by this court on 13th August 2024, they totally disregarded the said orders and thereafter without any color of right, blocked the applicant from accessing the 1st Respondent’s office to resume his duties at its chairman which is a gross violation of the said orders.
8. Further that in blatant disregard of the orders the Respondents issued a letter dated 23rd August 2024 to the applicant requesting him to return office documents and assets. They had since removed the applicant as a signatory and have started misusing the funds in the bank Account.
9. Further that if the orders sought herein are not granted, there is a likelihood that the Respondents shall siphon money meant for the community and the orders sought shall be an academic exercise.
10. Most of the other grounds set out as supporting the application are actually submissions.
11. In the further affidavit, the applicant deposes that the respondent was duly served with the court process. He has annexed various affidavits if service to the application as proof of service. suit HCJR Misc E004 of 2024 Jamal Abdallah Kidyogo v. Msambweni Community Development Agreement Committee (CDAC). In those proceedings, only the 1st respondent was a party.
12. He deposes further that the 1st respondent was served with the order the subject of the present application but did not acknowledge service thereof. Subsequently, an email was sent through its e-mail address. The applicant therefore maintains that the respondents were aware of the court order but failed to obey it.
13. I do not understand why the applicant had to bring these proceedings in a different file other than the one in which the subject orders were made. It makes the work tedious having to keep checking for filed documents and orders from one file to the other when all of them could be neatly found in one.
14. The application is opposed by the 2nd to 14th respondents through a joint replying affidavit sworn on 29th September 2024 and the 1st Interested Party (IP) Base Titanium Limited through a replying affidavit sworn on 23rd October 2024 by Mwanaharusi Mohammed Khamisi, its Community Programs Manager.
15. The 2nd to 14th respondents depose that they were never served with the order of this court issued on 13th August 2024.
16. The IP on its part filed a lengthy affidavit in response to the application. That affidavit would have been appropriate if it was a response to the substantive notice of motion for Judicial Review and not the present application for contempt. The paragraphs of the affidavit relevant to the present application are 7, 8, 39 and 40 where Mwanaharusi deposes that she is a member of the 1st respondent committee and that members became aware about an application seeking judicial review orders against the Committee which they later discovered was case number E004 of 2024. However, the Committee members were not aware of the contents of the Court Order as the same was never served upon them.
17. The contempt application was argued by way of written submissions filed by learned counsels for the parties who also provided several authorities to back up their arguments.
18. The submissions filed by the respondents are in respect of the substantive notice of motion of Judicial Review seeking orders of certiorari and not on the present application for contempt of court. The respondents’ submissions are therefore not useful for the determination of this application.
19. I have considered the application and the affidavits in reply that were filed by the respondents and the IP in opposition thereto. I have also considered the submissions by the parties’ respective learned counsels and the authorities cited.
20. Although the applicant sought for an order of temporary injunction in the application, the submissions are only on the prayer for contempt of court. I therefore consider and find that the applicant abandoned the prayer for temporary order of injunction.
21. Learned counsel has set out two issues for the court’s determination which are whether the respondents are in contempt of the court orders issued on 13th August 2024 and whether the applicant is entitled to the orders sought.
22. The 1st IP on its part submitted four issues for determination viz:
a. Whether the decision, against which contempt is alleged, exists;
b. Whether the 1st IP’s Preliminary Objection dated 11th October 2024 ("the PO") has merit;
c. Whether the applicant has satisfied the test for grant of contempt orders; and
d. Whether the applicant has satisfied the test for grant of a temporary injunction.
23. As stated above, the prayer for temporary injunction was abandoned by the applicant and therefore issue No. (d) does not fall for determination. The preliminary objection was determined elsewhere and the same was sustained and therefore it is res judicata. As for issue No. (a), the same would have been appropriate if what was being considered herein was the substantive notice of motion for orders of certiorari. The same has been determined elsewhere together with the preliminary objection. The only issues that remains for determination is whether the applicant has satisfied the test for grant of an order of contempt of court against the respondents.
24. The law on contempt of court is now well settled and I do not need to belabor anything much on it. I am persuaded to follow the case of Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR), where the High Court, Mativo, J. (as he then was), citing the High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell (Eastern Cape Division Case No. 364 of 2005) held that in order to succeed in civil contempt proceedings, the applicant has to prove:
a. The terms of the order alleged to have been disobeyed.
b. Knowledge of these terms by the respondent; and
c. Failure by the Respondent to comply with the terms of the order.
25. In the case of Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) the Court of Appeal held that the standard of proof of contempt of court must be beyond a balance of probabilities but not beyond reasonable doubt. The Court of Appeal said:
“In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi – criminal in nature…”
26. The burden of proof of the contempt alleged against the respondents is on the applicant. as is provided for under section 107 of the Evidence Act (Cap. 80) Laws of Kenya that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
27. I am not satisfied that the applicant has discharged this burden of proof for several reasons.
28. The first issue to determine is the proof that the respondents were served with the orders sought to be enforced.
29. The orders complained of were issued by this court on 13th August 2024 where the court issued an order of stay of the decision of the 1st respondent as follows:
“The applicant is granted leave to apply for an order of Certiorari to bring to this Honourable court to quash the decision made on 7th August 2024, by the Respondent removing the Applicant as the Chairman of the Committee.
The substantive motion for Judicial Review be filed and served upon the respondent within the next 21 days from today.
The Respondents have 14 days to respond to substantive motion from the date of service
The grant of leave herein does operate as a stay of the decision made on 7th August, 2024 by the Respondent removing the Applicant as the Chairman of the Committee.”
30. As proof of service of the orders, the applicant relies on a letter dated 26th August 2024 from his advocates Mwangi Kihira & Co. Advocates to the 1st respondent, with attention to Rose Nzisa Kyalo as follows:
Ref: Request to Return Office Documents and Assets
Our Client: Jamal Abdallah Kidyogo
We refer to your letter dated 23.8.2024.
We wish to inform you that our client shall not be returning any office documents or assets reason being that your illegal decision to remove him from office was barred by Lady justice Wendy Micheni vide the court order dated 13.8.2024 in HCJRMISC/E004/2024 – JAMAL ABDALLAH KIDYOGO V CADAC MSAMBWENI AND BASE TITANIUM LTD. The same has been attached for ease of reference.
Kindly note that there are penal consequences for the disobedience of court orders. Our directions for your own good, are that you stop your illegal actions lest we file for contempt of court proceedings.
Be advised.
Regards
FOR MWANGI KIHIRA & CO. ADVOCATES
signed.
MWANGI. E
CC: CLIENT
BASE TITANIUM
HIGH COURT KWALE
ENCL: COURT ORDER DATED 5.8.2024
31. On the face of that letter it is indicated that the same was by “hand delivery” with “advance copy via e-mail,” which is given as cdacmsa2021@gmail.com.
32. I find that the letter is inadequate to prove that service of the relevant court order was made upon any of the respondents for several reasons.
33. Although generally addressed to the 1st respondent, it is to the attention of Rose Nzisa Kyalo. There is nowhere the letter indicates that the contents and annexures thereto should be brought to the attention of the other members of the 1st respondent. Therefore, assuming that the 1st respondent received the letter, read it and kept it, the applicant cannot show that in fact she shared the contents with the 2nd to 14th respondents. The letter in itself was not a court order and therefore even if Rose Nzisa read the contents she cannot be held to have disobeyed a court order.
34. More fundamentally, in relation to the orders that were allegedly annexed, the letter shows at the bottom that in fact, the court order enclosed was the one dated 5th August, 2024 and not the order the subject of the contempt proceedings which was issued on 13th August 2024. Therefore, assuming as the applicant wishes the court to believe that Rose Nzisa Kyalo shared the contents of the letter with the other respondents and therefore they had knowledge of the contents, the order that would have been brought to their attention was one allegedly dated 5th August 2024. I have perused the documents filed in Kwale HCJR MISC E004 of 2024 and I do not find any order issued on that date. In any case, it would not be the order the subject of the present application. In all the affidavits of service filed in that case, none relates to the orders issued on 13th August 2024.
35. I have looked at the received date stamp appearing on the order dated 13th August 2024 and filed herein by the applicant as proof of service of the order complained of. I note that the stamp is for the County Director of Environment, NEMA Kwale County who is not any of the respondents herein nor a party to these proceedings.
36. There is no other evidence of service of the order issued on 13th August 2024 upon any of the respondents that was allegedly breached by them.
37. There is no dispute that when the order was issued on 13th August 2024, the respondents had not appeared to the application and they were not represented by counsel. Therefore, they had no other means of getting knowledge of the orders other than being served personally.
38. As proof of the disobedience of the court orders, the applicant refers to the letter dated 23rd August 2024 addressed to the applicant by Rose Nzisa Kyalo, secretary of the 1st respondent. The letter refers to the removal of the applicant as chairperson of the 1st respondent during a special general meeting held on 1st August 2024 and requests him to return any office documents or assets that may still be in his custody by 26th August 2026.
39. The IP has maintained through the replying affidavit and the submissions by d counsel that in fact, the meeting was indeed held on 1st August 2024 and not 7th August 2024 as alleged by the applicant throughout all his applications. That argument would have held sway if the court was considering the substantive motion for judicial review. For now, it bears little relevance to the present application.
40. That letter does not indicate anywhere that after the meeting of 1st August 2024 (or 7th August 2024 as the applicant put it in his applications), that removed the applicant as chairperson of the 1st respondent, the members of the 1st respondent met again and made any other decision concerning him. It is apparent that the letter by the secretary was simply a follow-up of the meeting of 1st August 2024. Therefore, although the applicant deposes that the respondents disregarded the orders of 13th August 2024, there is no proof of any action taken by the respondents such as minutes of any meeting held and at which his issues were discussed.
41. It follows that there is no proof that the respondents did any act that was contrary to what the court order had prohibited them.
42. The applicant also alleges that the respondents blocked him from accessing the 1st respondent’s offices to resume his duties but does not state when this was done and by whom among the 2nd to 14th respondents.
43. The mischief that the law of contempt of court seeks to cure is deliberate disobedience of court orders. In the case of Samuel M. N. Mweru & others v National Land Commission & 2 others [2020] eKLR it was held that the breach complained of has to be both deliberate and mala fides. In this case I find that, even though the application is based on breach of the orders dated 13th August 2024 there is no affidavit of service filed to prove that the respondents had knowledge of the existence of these orders.
44. Consequently, I find that it has not been proved to the required standard that the respondents had knowledge of or proper notice of the terms of the orders complained of and that the respondents acted in deliberate disobedience of the court orders.
45. I find that the application has no merit and the same is dismissed with no orders as to costs.
46. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for Ex-parte Applicant.
N/A for the Respondent.
Mwango (Ms) for the 1st Interested Party.
N/A for the 2nd and 3rd IPs.
Ummu Court Assistant.