1. This is a ruling on the Motion on Notice dated 10/6/2026. The same was brought under section 5 of the Judicature Act and Article 159 of the Constitution of Kenya.
2. By that Motion, the applicant sought a raft of orders, including, citing the respondents for contempt and upon citing them, having them arrested and committed to jail for a term not exceeding 6 months. There were also prayers for the release of Motor Vehicle Reg. No. KCZ 143C to the applicant and damages of Kshs.5,000,000/- against the auctioneer.
3. The grounds for the Motion were set out in the body of the Motion and the Supporting Affidavit of Judith Adhiambo Matengo sworn on 10/6/2026. These were that the Small Claims Court had on 28/5/2026 made an order for release of Motor Vehicle Reg. No. KCZ 143C to the applicant on payment of Kshs.10,000/- as thrown away costs. That the applicant duly paid the said sum by way of Mpesa on 29/5/2026. That the said order was served upon the respondents on 29/5/2026. That despite the said costs having been paid, the respondents have continued to act in collusion and refused to release the said vehicle.
4. That despite the respondents being Court officers, they have continued to act jointly in disobeying the said order. That the Auctioneer has continued to detain the said vehicle despite the said release order and the applicant should be compensated by an award of damages of Kshs.5,000,000/-. That the applicant filed an application for contempt but the Small Claims Court held that it had no jurisdiction to deal with the same. That the continued detention of the said vehicle amounted to contempt of court.
5. The application was opposed vide Grounds of Opposition dated 15/6/2026. It was contended that the application was frivolous, misconceived, incompetent and an abuse of the Court process, that the same does not meet the high threshold set out in the English Civil Procedure Rules (Amendment No. 3) 2020 and that the impugned order did not have a penal notice.
6. There was also a replying affidavit by John Bon Ombata, the 2nd respondent sworn on 19/6/2026. He deposed that he had never been a party to the proceedings and he cannot therefore be named as a 2nd respondent in these proceedings.
7. That he was only an agent of a disclosed principal, only hired to execute warrants which he had duly discharged. That on instructions from the decree holders advocates he had, on 11/3/2026 proclaimed the judgment debtors motor vehicles including KCZ 143C (‘the said vehicle’). That on 11/5/2026, he attached the said vehicle. That he has never been served personally with any order for the release of the said vehicle.
8. He further deposed that since the Contempt of Court Act No. 46 of 2016 was declared unconstitutional in the case of Kenya Human Rights Commission vs AG & Anor (2018) eKLR, the law applicable is the English Law which required, inter alia, personal service of the order. That personal service in this case had not been dispensed with.
9. That even if the service was effected in accordance with Order 5 Rule 22B, there was no copy of delivery receipt to prove service. That if there was any disobedience of the Court order, it was neither willful or deliberate. That the application was defective as it was supposed to be made by way of Application Notice under the English Law.
10. Further, that the order was not clear who was to bear the storage charges and the auctioneers fees. Finally, that the Court that made the order had no jurisdiction pursuant to Legal Notice No. 6567 on transferring personal claims cases from Small Claims Court to Magistrate’s Courts.
11. The parties filed their respective submissions dated 19/6/2026 and 29/6/2026, respectively. It was submitted for the applicant that this Court had jurisdiction to entertain the application by dint of section 5 of the Judicature Act. That the ingredients of contempt are; that the order is clear and unambiguous, knowledge of the same, the breach thereof and the breach being deliberate. The case of North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi (2016) eKLR was cited in support of that proposition.
12. That the standard of proof was beyond the balance of probability but near proof beyond reasonable doubt. The case of Mutitika vs Baharini Farm Ltd (1985) KLR 229 was cited in support of that submission. That the respondents were personally served with the order and knew the terms of the order. That Court Orders are compulsive and require to be obeyed. Fred Matiang’i, Cabinet Secreatay, Ministry of Interior vs Miguna Miguna & 4 Others (2018) eKLR was relied on for that submission.
13. That the applicant had proved that there had been contempt having established all the 4 preliquisites. That the 2nd respondent was obliged under section 23 of the Auctioneer Act Cap 526 to act in a manner befitting an officer of the Court. That the firm of Ndar Omondi & Company had also abetted the contempt and should be denied audience. That the orders sought should be granted. That the claim for compensation of Kshs.5,000,000/- was well founded.
14. That the form of the application was not material by virtue of Article 159 of the Constitution of Kenya.
15. For the respondents, it was submitted that the 2nd respondent had not been joined to the proceedings and no personal liability could arise. That the Court must be satisfied that a contemnor had knowledge of the order. The case of Shimers Plaza Ltd vs National Bank of Kenya Ltd (2015) KECA 945 (KLR) was cited in support of that proposition. That service of the order had not been proved.
16. That the application had not satisfied the requirements of Part 81 of the English Civil Procedure Rules. That in the present case, the order was vague, lacked penal notice and was never served personally on the 2nd respondent. The respondents could not be cited for contempt as the order was vague, uncertain impracticable or incapable of performance. The case of Teachers Service Commission vs Kenya National Union of Teachers & 2 Others (sic) was relied on in support of that submission.
17. That the 2nd respondent cannot release the vehicle as the storage charges had not been settled. The case of Republic vs Kenya School of Law & 2 Others Ex Parte Juliet Wanjiru Njoroge (2015) eKLR was cited in support of that proposition.
18. That under Legal Notice No. 6567 on personal injury claims, the matter in the Small Claims Court should have been transferred to the Chief Magistrate’s Court. That therefore, the Small Claims Court had no jurisdiction. That since judgment was entered on 8/1/2026, the applicant should have sought the transfer of the suit to the Chief Magistrate’s Court first. The case of Macfoy vs United Africa Co. Ltd (1961) 3 ALL ER 1169 was cited in support of the submissions that the proceedings were conducted without jurisdiction and they were therefore a nullity.
19. I have considered the opposing contestations. This is a simple application for contempt. However, various issues have been raised that require determination. These are; the form of the application, whether this Court has jurisdiction to entertain the application, whether the 2nd respondent has been properly enjoined in the proceedings, whether the Court that made the order had jurisdiction in view of alleged Legal Notice No. 6567, whether the order of 28/5/2026 was enforceable without the storage charges and auctioneer’s costs being settled and finally whether there had been contempt of court.
20. On jurisdiction, the Court agrees with the applicant’s submissions that this Court has the jurisdiction to entertain the application. With the striking out of the Contempt of Court Act, 2016, we reverted back to the English Law on contempt under section 5 of Judicature Act. Under that provision, the High Court and Court of Appeal have the jurisdiction to punish for contempt.
21. The respondents raised an objection to the form of the application. They correctly submitted that under the English Law, the Court is approached by way of Application Notice and not by a direct Notice of Motion as in this case. I have considered the parties’ submissions on this issue. What the respondents did not submit on is what prejudice they suffered by the applicant approaching the Court by way of a direct Motion for contempt instead of by way of Application Notice. There having been no prejudice suffered or occasioned by the deviation, this court’s view is that, that is a mere technical objection which is curable by the application of Article 159 (2) (d) of the Constitution. To the extent that the objection was in the form of the application and not substance, this Court rejects the same.
22. The 2nd respondent contended that he had not been properly enjoined in these proceeding. That there had been no application to have him formally enjoined as he had played no part in the previous proceedings. A short answer to that is that, the 2nd respondent is a proper party to the contempt proceedings. What is being contended is that he, as the person to whom the order of 28/5/2026 was directed at, has deliberately disobeyed that order. There need be no joinder proceedings before a suspected contemnor is joined in contempt proceedings. Accordingly, the 2nd respondent is a proper party. That objection is rejected.
23. The 2nd respondent also contended that the order of 28/5/2026 was vague. That it could not be obeyed because it was silent on who was to pay his costs and the storage charges. This Court takes a different view. It is not upon a party to whom an order is directed at to interpret an order to his convenience. The fact that the subject order did not address the twin issues of storage charges and the auctioneer’s costs did not make the order vague. If the 2nd respondent wished to challenge the order on that basis, he should have gone back to the Court that made the order and seek clarification. It was not open to him to ignore the order on the ground that the order had not addressed the issue of his costs and the storage charges. There are procedures in law how those issues are to be addressed both under the Auctioneers Act and the Civil Procedure Act and Rules. The order was clear that once the costs of Kshs.10,000/- had been paid, the said vehicle be released to the applicant. Period. That objection and contention is rejected.
24. There was also the objection to the order on the ground that the Small Claims Court had no jurisdiction to grant the order by dint of Legal Notice No. 6567. That the Court had no jurisdiction to deal with matters arising out of personal injury claims.
25. First, there is nothing in existence as Legal Notice No. 6567. What there is, is Gazette Notice No. 6567 of 2026. Vide that Gazette Notice, the honourable the Chief Justice gazetted guidelines on how personal injury claims were to be dealt with post the High Court decision in Gathaiya vs AG & 2 Others (2026) KEHC KLR. Guideline No. 3 thereof provided: -
“3 (1) Only eligible matters shall be transferred to Magistrate’s Courts.
(2) …
(3) For avoidance of doubt, personal injury claims arising from road traffic accidents in which judgment had already been delivered as at 22 January, 2026 shall be deemed concluded and shall not be re-opened or transferred to the Magistrate’s Court, except as may be provided by law.”
26. In the present case, judgment was pronounced on 8/1/2026 meaning that, this was not one of the eligible matters for transfer to the Magistrate’s Court. It is a clear dishonesty for the respondents to raise such contention when they themselves sought and executed the warrants issued by the Small Claims Court post January, 2026. That contention is rejected and I hold that the Small Claims Court had jurisdiction to issue the order it did.
27. Having dealt with and answered all the preliminary issues, the question is whether contempt had been proved.
28. It is the plain and unqualified obligation of every person against whom an order is made by a court of competent jurisdiction to obey it unless and until such order is discharged. It is generally no answer to an action for contempt that the order disobeyed should not have been made in the first place. The proper course if it is sought to challenge such an order, is to apply to have it set aside.
29. As held in North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi (supra), to prove contempt, an applicant has to prove (i) the terms of the order (ii) knowledge of the terms by the respondent (iii) failure of the respondent to comply with the terms of the order and (iv) that the failure to comply was deliberate.
30. In the present case, the terms of the order of 28/5/2026 were clear. The Court directed that the subject Motor vehicle be released to the applicant on condition that costs of Kshs.10,000/- be paid. Those costs were paid to the 1st respondent’s advocates on 29/5/2026. Upon such payment, the obligation to release the subject vehicle by both the respondents arose and the order should have been forthwith obeyed.
31. I will later on deal with the issue of knowledge. As to whether the order had been disobeyed and whether the disobedience is deliberate, that cannot be in question. In this ruling, I have dealt with all the excuses that have been advanced by the respondents for not complying with the terms of the said order. As at the time of writing this ruling, the subject Motor vehicle had not been released and deliberately so by the respondents. Clearly, there has been and continues to be contempt of that order.
32. The last issue, and very crucial, is the knowledge of the order. Of course, through the affidavit in support of the Motion and these proceedings, the respondents are/were aware of the order. The question is, is such knowledge adequate to enforce the contempt proceedings and punish them appropriately? I do not think so.
33. In Mutitika vs Baharini Farm Ltd, it was held: -
“The Courts take the view that were the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an office of a criminal character. A man may be sent to prison. It must be satisfactorily proved… It must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. … However, the guilt has to be proved with such strictness of proof as it consistent with the gravity of the charges…”
34. It is because of the severity of the charge of contempt, that proof that the respondents had knowledge of the terms of the order is crucial.
35. Under the current legal regime for contempt proceedings, the law applicable is that the England. Under Part 81.4 of the English Civil Procedure Rules, 2020, an applicant must prove that the order was personally served and that the order had a Notice of Penal consequences.
36. In the present case, there was admittedly no personal service. Although our Civil Procedure Rules have permitted service of pleadings by other modes other than personal, there is no provision that permits service of Court orders by WhatsApp, email etc. for one to be held to be in contempt thereof, it must be proved that there was personal service. Unless personal service becomes difficult, as in where a respondent is avoiding service, that is when other modes of service may be resulted to. However, it must be proved that there have been attempted repeated personal service which have failed before such other modes of service of an order can be resulted to.
37. In the present case, Julius Otieno Raminya swore in his affidavit of 29/5/2026 how he casually called the 2nd respondent and sent him the order on his WhatsApp. That cannot be said to be proper service of a Court Order! Period. Personal service had not been excused by the Court.
38. Further, the order exhibited as ‘JAM4” did not have a Notice of Penal Consequences.
39. Accordingly, while there is proof of deliberate and blatant disobedience of the subject order, the application cannot succeed for lack of personal service and Penal Notice. The application hereby fails. For reason that the respondents are contumacious of the order of 28/5/2026, I will make no orders as to costs.
40. Aware of the provisions of section 7 of the Civil Procedure Act and minded on the importance of the Rule of law under Article 10 of the Constitution of Kenya, and for the avoidance of doubt, the dismissal of this contempt application shall not be a bar to any fresh one being mounted once the twin flows highlighted above are fixed and/or rectified.
It is so ordered.
2. By that Motion, the applicant sought a raft of orders, including, citing the respondents for contempt and upon citing them, having them arrested and committed to jail for a term not exceeding 6 months. There were also prayers for the release of Motor Vehicle Reg. No. KCZ 143C to the applicant and damages of Kshs.5,000,000/- against the auctioneer.
3. The grounds for the Motion were set out in the body of the Motion and the Supporting Affidavit of Judith Adhiambo Matengo sworn on 10/6/2026. These were that the Small Claims Court had on 28/5/2026 made an order for release of Motor Vehicle Reg. No. KCZ 143C to the applicant on payment of Kshs.10,000/- as thrown away costs. That the applicant duly paid the said sum by way of Mpesa on 29/5/2026. That the said order was served upon the respondents on 29/5/2026. That despite the said costs having been paid, the respondents have continued to act in collusion and refused to release the said vehicle.
4. That despite the respondents being Court officers, they have continued to act jointly in disobeying the said order. That the Auctioneer has continued to detain the said vehicle despite the said release order and the applicant should be compensated by an award of damages of Kshs.5,000,000/-. That the applicant filed an application for contempt but the Small Claims Court held that it had no jurisdiction to deal with the same. That the continued detention of the said vehicle amounted to contempt of court.
5. The application was opposed vide Grounds of Opposition dated 15/6/2026. It was contended that the application was frivolous, misconceived, incompetent and an abuse of the Court process, that the same does not meet the high threshold set out in the English Civil Procedure Rules (Amendment No. 3) 2020 and that the impugned order did not have a penal notice.
6. There was also a replying affidavit by John Bon Ombata, the 2nd respondent sworn on 19/6/2026. He deposed that he had never been a party to the proceedings and he cannot therefore be named as a 2nd respondent in these proceedings.
7. That he was only an agent of a disclosed principal, only hired to execute warrants which he had duly discharged. That on instructions from the decree holders advocates he had, on 11/3/2026 proclaimed the judgment debtors motor vehicles including KCZ 143C (‘the said vehicle’). That on 11/5/2026, he attached the said vehicle. That he has never been served personally with any order for the release of the said vehicle.
8. He further deposed that since the Contempt of Court Act No. 46 of 2016 was declared unconstitutional in the case of Kenya Human Rights Commission vs AG & Anor (2018) eKLR, the law applicable is the English Law which required, inter alia, personal service of the order. That personal service in this case had not been dispensed with.
9. That even if the service was effected in accordance with Order 5 Rule 22B, there was no copy of delivery receipt to prove service. That if there was any disobedience of the Court order, it was neither willful or deliberate. That the application was defective as it was supposed to be made by way of Application Notice under the English Law.
10. Further, that the order was not clear who was to bear the storage charges and the auctioneers fees. Finally, that the Court that made the order had no jurisdiction pursuant to Legal Notice No. 6567 on transferring personal claims cases from Small Claims Court to Magistrate’s Courts.
11. The parties filed their respective submissions dated 19/6/2026 and 29/6/2026, respectively. It was submitted for the applicant that this Court had jurisdiction to entertain the application by dint of section 5 of the Judicature Act. That the ingredients of contempt are; that the order is clear and unambiguous, knowledge of the same, the breach thereof and the breach being deliberate. The case of North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi (2016) eKLR was cited in support of that proposition.
12. That the standard of proof was beyond the balance of probability but near proof beyond reasonable doubt. The case of Mutitika vs Baharini Farm Ltd (1985) KLR 229 was cited in support of that submission. That the respondents were personally served with the order and knew the terms of the order. That Court Orders are compulsive and require to be obeyed. Fred Matiang’i, Cabinet Secreatay, Ministry of Interior vs Miguna Miguna & 4 Others (2018) eKLR was relied on for that submission.
13. That the applicant had proved that there had been contempt having established all the 4 preliquisites. That the 2nd respondent was obliged under section 23 of the Auctioneer Act Cap 526 to act in a manner befitting an officer of the Court. That the firm of Ndar Omondi & Company had also abetted the contempt and should be denied audience. That the orders sought should be granted. That the claim for compensation of Kshs.5,000,000/- was well founded.
14. That the form of the application was not material by virtue of Article 159 of the Constitution of Kenya.
15. For the respondents, it was submitted that the 2nd respondent had not been joined to the proceedings and no personal liability could arise. That the Court must be satisfied that a contemnor had knowledge of the order. The case of Shimers Plaza Ltd vs National Bank of Kenya Ltd (2015) KECA 945 (KLR) was cited in support of that proposition. That service of the order had not been proved.
16. That the application had not satisfied the requirements of Part 81 of the English Civil Procedure Rules. That in the present case, the order was vague, lacked penal notice and was never served personally on the 2nd respondent. The respondents could not be cited for contempt as the order was vague, uncertain impracticable or incapable of performance. The case of Teachers Service Commission vs Kenya National Union of Teachers & 2 Others (sic) was relied on in support of that submission.
17. That the 2nd respondent cannot release the vehicle as the storage charges had not been settled. The case of Republic vs Kenya School of Law & 2 Others Ex Parte Juliet Wanjiru Njoroge (2015) eKLR was cited in support of that proposition.
18. That under Legal Notice No. 6567 on personal injury claims, the matter in the Small Claims Court should have been transferred to the Chief Magistrate’s Court. That therefore, the Small Claims Court had no jurisdiction. That since judgment was entered on 8/1/2026, the applicant should have sought the transfer of the suit to the Chief Magistrate’s Court first. The case of Macfoy vs United Africa Co. Ltd (1961) 3 ALL ER 1169 was cited in support of the submissions that the proceedings were conducted without jurisdiction and they were therefore a nullity.
19. I have considered the opposing contestations. This is a simple application for contempt. However, various issues have been raised that require determination. These are; the form of the application, whether this Court has jurisdiction to entertain the application, whether the 2nd respondent has been properly enjoined in the proceedings, whether the Court that made the order had jurisdiction in view of alleged Legal Notice No. 6567, whether the order of 28/5/2026 was enforceable without the storage charges and auctioneer’s costs being settled and finally whether there had been contempt of court.
20. On jurisdiction, the Court agrees with the applicant’s submissions that this Court has the jurisdiction to entertain the application. With the striking out of the Contempt of Court Act, 2016, we reverted back to the English Law on contempt under section 5 of Judicature Act. Under that provision, the High Court and Court of Appeal have the jurisdiction to punish for contempt.
21. The respondents raised an objection to the form of the application. They correctly submitted that under the English Law, the Court is approached by way of Application Notice and not by a direct Notice of Motion as in this case. I have considered the parties’ submissions on this issue. What the respondents did not submit on is what prejudice they suffered by the applicant approaching the Court by way of a direct Motion for contempt instead of by way of Application Notice. There having been no prejudice suffered or occasioned by the deviation, this court’s view is that, that is a mere technical objection which is curable by the application of Article 159 (2) (d) of the Constitution. To the extent that the objection was in the form of the application and not substance, this Court rejects the same.
22. The 2nd respondent contended that he had not been properly enjoined in these proceeding. That there had been no application to have him formally enjoined as he had played no part in the previous proceedings. A short answer to that is that, the 2nd respondent is a proper party to the contempt proceedings. What is being contended is that he, as the person to whom the order of 28/5/2026 was directed at, has deliberately disobeyed that order. There need be no joinder proceedings before a suspected contemnor is joined in contempt proceedings. Accordingly, the 2nd respondent is a proper party. That objection is rejected.
23. The 2nd respondent also contended that the order of 28/5/2026 was vague. That it could not be obeyed because it was silent on who was to pay his costs and the storage charges. This Court takes a different view. It is not upon a party to whom an order is directed at to interpret an order to his convenience. The fact that the subject order did not address the twin issues of storage charges and the auctioneer’s costs did not make the order vague. If the 2nd respondent wished to challenge the order on that basis, he should have gone back to the Court that made the order and seek clarification. It was not open to him to ignore the order on the ground that the order had not addressed the issue of his costs and the storage charges. There are procedures in law how those issues are to be addressed both under the Auctioneers Act and the Civil Procedure Act and Rules. The order was clear that once the costs of Kshs.10,000/- had been paid, the said vehicle be released to the applicant. Period. That objection and contention is rejected.
24. There was also the objection to the order on the ground that the Small Claims Court had no jurisdiction to grant the order by dint of Legal Notice No. 6567. That the Court had no jurisdiction to deal with matters arising out of personal injury claims.
25. First, there is nothing in existence as Legal Notice No. 6567. What there is, is Gazette Notice No. 6567 of 2026. Vide that Gazette Notice, the honourable the Chief Justice gazetted guidelines on how personal injury claims were to be dealt with post the High Court decision in Gathaiya vs AG & 2 Others (2026) KEHC KLR. Guideline No. 3 thereof provided: -
“3 (1) Only eligible matters shall be transferred to Magistrate’s Courts.
(2) …
(3) For avoidance of doubt, personal injury claims arising from road traffic accidents in which judgment had already been delivered as at 22 January, 2026 shall be deemed concluded and shall not be re-opened or transferred to the Magistrate’s Court, except as may be provided by law.”
26. In the present case, judgment was pronounced on 8/1/2026 meaning that, this was not one of the eligible matters for transfer to the Magistrate’s Court. It is a clear dishonesty for the respondents to raise such contention when they themselves sought and executed the warrants issued by the Small Claims Court post January, 2026. That contention is rejected and I hold that the Small Claims Court had jurisdiction to issue the order it did.
27. Having dealt with and answered all the preliminary issues, the question is whether contempt had been proved.
28. It is the plain and unqualified obligation of every person against whom an order is made by a court of competent jurisdiction to obey it unless and until such order is discharged. It is generally no answer to an action for contempt that the order disobeyed should not have been made in the first place. The proper course if it is sought to challenge such an order, is to apply to have it set aside.
29. As held in North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi (supra), to prove contempt, an applicant has to prove (i) the terms of the order (ii) knowledge of the terms by the respondent (iii) failure of the respondent to comply with the terms of the order and (iv) that the failure to comply was deliberate.
30. In the present case, the terms of the order of 28/5/2026 were clear. The Court directed that the subject Motor vehicle be released to the applicant on condition that costs of Kshs.10,000/- be paid. Those costs were paid to the 1st respondent’s advocates on 29/5/2026. Upon such payment, the obligation to release the subject vehicle by both the respondents arose and the order should have been forthwith obeyed.
31. I will later on deal with the issue of knowledge. As to whether the order had been disobeyed and whether the disobedience is deliberate, that cannot be in question. In this ruling, I have dealt with all the excuses that have been advanced by the respondents for not complying with the terms of the said order. As at the time of writing this ruling, the subject Motor vehicle had not been released and deliberately so by the respondents. Clearly, there has been and continues to be contempt of that order.
32. The last issue, and very crucial, is the knowledge of the order. Of course, through the affidavit in support of the Motion and these proceedings, the respondents are/were aware of the order. The question is, is such knowledge adequate to enforce the contempt proceedings and punish them appropriately? I do not think so.
33. In Mutitika vs Baharini Farm Ltd, it was held: -
“The Courts take the view that were the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an office of a criminal character. A man may be sent to prison. It must be satisfactorily proved… It must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. … However, the guilt has to be proved with such strictness of proof as it consistent with the gravity of the charges…”
34. It is because of the severity of the charge of contempt, that proof that the respondents had knowledge of the terms of the order is crucial.
35. Under the current legal regime for contempt proceedings, the law applicable is that the England. Under Part 81.4 of the English Civil Procedure Rules, 2020, an applicant must prove that the order was personally served and that the order had a Notice of Penal consequences.
36. In the present case, there was admittedly no personal service. Although our Civil Procedure Rules have permitted service of pleadings by other modes other than personal, there is no provision that permits service of Court orders by WhatsApp, email etc. for one to be held to be in contempt thereof, it must be proved that there was personal service. Unless personal service becomes difficult, as in where a respondent is avoiding service, that is when other modes of service may be resulted to. However, it must be proved that there have been attempted repeated personal service which have failed before such other modes of service of an order can be resulted to.
37. In the present case, Julius Otieno Raminya swore in his affidavit of 29/5/2026 how he casually called the 2nd respondent and sent him the order on his WhatsApp. That cannot be said to be proper service of a Court Order! Period. Personal service had not been excused by the Court.
38. Further, the order exhibited as ‘JAM4” did not have a Notice of Penal Consequences.
39. Accordingly, while there is proof of deliberate and blatant disobedience of the subject order, the application cannot succeed for lack of personal service and Penal Notice. The application hereby fails. For reason that the respondents are contumacious of the order of 28/5/2026, I will make no orders as to costs.
40. Aware of the provisions of section 7 of the Civil Procedure Act and minded on the importance of the Rule of law under Article 10 of the Constitution of Kenya, and for the avoidance of doubt, the dismissal of this contempt application shall not be a bar to any fresh one being mounted once the twin flows highlighted above are fixed and/or rectified.
It is so ordered.