1. By the Plaint dated 16/09/2025, the Plaintiffs, through Messrs C.W. Chege & Co. Advocates sought Judgment against the Defendants for a permanent injunction to bar the Defendants from selling or disposing the Plaintiffs’ two properties or interfering with their possession thereof. The genesis of the suit was the advancement of loan facilities by the 1 st Defendant (a bank) to the Plaintiffs sometime between the years 2019 and 2021, in respect to which the 1 st Defendant had moved to exercise its statutory power of sale by auctioning the said properties lodged as security or collateral for the loan, on the basis that the Plaintiffs had defaulted in repayment. The 2 nd Defendant acted as the 1 st Defendants Advocates in the loan transaction. The parties however negotiated a settlement in the year 2024 part of which included a take-over or buy-out of the loan by Messrs I&M Bank Limited . The Plaintiff however accuses the 1 st Defendant of stalling the settlement by, inter alia , loading into the deal and/or loan account an exorbitant amount of legal fees payable to the 2 nd Defendant, and also loading further interest on the loan account when a settlement had already been reached. It was thus urged that the Defendants were unlawfully hindering or impeding the Plaintiffs’ right of redemption by declining to proceed with the settlement on account of the above unjustified reasons, and instructing Auctioneers to proceed with the auction. The outstanding debt alleged by the Defendants was said to amount to USD 84,213,.80 as at 21/07/2025, and together with the Plaint, the Plaintiff also filed an Application seeking interlocutory injunction orders.
2. It is not in dispute that the agreement referred to above is the one contained in the email sent out on 24/10/2024 by a representative of the 1 st Defendant, in response to an email from the 1 st Plaintiff, as part of a series of several emails exchanged in the course of negotiating the terms under which the loan would be taken over by Messrs I&M Bank Ltd . The email of 24/10/2024 was crafted as follows:
“Dear Andrew, Lydia
Thank you for your email.
Upon further review of your proposal, we would like to clarify that we will only proceed with release of the security documents under the following conditions:
1. Receipt of Kshs. 9 million before the auction date.
2. A letter of undertaking for the remaining balance of Kshs 11 million.
We are not inclined to allow payment obligations to extend into the year.
Kind regards,
Phylis Bwabi
Legal Recoveries Portfolio Team Leader
Collections and Recoveries”
3. It is further not in dispute that the Plaintiffs, signifying their acceptance of the above terms, paid to the 1 st Defendant the said sum of Kshs 9,000,000/- thus paving the way for processing of the letter of undertaking as a condition for take-over of the loan, and as a result, the intended auction was cancelled. It is evident that it is the contents of the letter of undertaking that the parties could thereafter not agree upon thus leading to the unfortunate stalling of the deal. It is also evident that the stalemate arose as a result of failure by the parties to agree on inclusion in the letter of undertaking, of payment by the Plaintiffs of the 2 nd Defendants legal fees, and also other charges described as penalties, and/or the quantum thereof.
4. It is also not in dispute that after the suit was filed, when the matter came up in Court on 1/12/2025 before Mon’gare J for taking of directions on the Application for Interlocutory Injunction, an order was made in the presence of Counsels for both sides to the following effect:
“1. THAT the parties having reached a settlement on the outstanding loan and of modalities of payment, the loan balance be paid in full to the Bank.
2. THAT the issue of legal costs be subjected for assessment by the Court.
3. THAT the second Defendant's Advocate has I4 days to file a Bill of Costs for assessment by the Court the normal manner.
4. THAT the matter be mentioned on 2 nd March, 2026 for further directions
5. THAT the parties do abide to the modalities of settlement.
6. THAT the Application is now spent .”
5. The above order however still did not lead to a settlement of the matter as expected as the Plaintiffs filed the instant Application dated 12/02/2026, the subject of this Ruling. The same is filed through the Plaintiffs new Advocates, Messrs CDM Associates Advocates LLP , and seeks orders as follows:
i) That this Honourable Court be pleased to order the 1 st Defendant’s Legal & Compliance Director Mr. Ken Kanyarati and Legal Counsel Mr. Samuel Njuguna, and the 2 nd Defendant’s Mr. Peter Munga Murage to be committed to civil jail for contempt for disobedience of this Honourable Court’s Orders issued on 1 st December 2025.
ii) Costs of this Application be awarded to the Plaintiffs.
6. The Application is supported by the Affidavit sworn by the 1 st Plaintiff who deponed that in disobedience of the said orders made by Mon’gare J on 1/12/2025, the 2 nd Defendant demanded for amounts of USD 128,534.09 and Kshs 2,737,056.80 as at 16/12 2025, in excess of the amount agreed upon in the settlement of 24/10/2024. She urged that the amounts demanded are inclusive of legal fees of Kshs 1,044,000/- which amount was debited from her account on 13/06/2025 despite the subject order having directed that the 2 nd Defendant submit its Bill of Costs for assessment by the Court, which Bill has not been filed to date. She refuted the position taken by the 2 nd Defendants in their letter dated 22/01/2026 claiming that the Court did not specify the quantity or settlement amount payable, or that the Court merely noted that there was existence of negotiations and directed parties to abide by the modalities agreed upon without adopting, recording or endorsing any specific figures as part of the Court order According to her, the phrase in the order of 1/12/2025 directing that “ the parties abide to the modalities of settlement ” was that a sum of Kshs 20,000,000/- be paid by way of a cash deposit of Kshs 9,000,000/- (which was indeed paid in November 2024), and a take-over for the balance of Kshs 11,000,000/- to follow. She also refuted the 1 st Defendant’s position that the settlement was still under negotiation and was never concluded, insisting that proof of the Agreement is evidenced by contents of the letters attached and the Defendants’ own previous Affidavit filed in response to the Application for interlocutory Injunction.
7. In opposing the Application, the Defendants filed the Grounds of Opposition dated 25/02/2026 in which it was contended that the Application is fatally defective as it offends Order 9 Rule 5 for want of filing of a Notice of Change of Advocates, that the Order of 1/12/2025 does not disclose the sums payable to warrant a claim for Contempt of Court as the Order was ambiguous, and did not disclose the sums payable as legal costs. It was thus asserted that a disagreement on the quantum of legal costs cannot amount to contempt of Court and, as such, the Application is solely intended to vex the 2 nd Defendant to forego its accrued legal costs. It was further stated that the Plaintiffs have come before Court with unclean hands as even the purported balance of Kshs 11,000,000/- of the “agreed amount” of the Kshs 20,000,000/- has never been paid.
8. The Defendants, additionally, filed the Replying Affidavit sworn on 5/05/2026 by Samuel Njuguna , who introduced himself as the 1 st Defendant’s Legal Counsel-Recoveries. He referred the Court to the contents of his earlier Affidavit sworn in response to the Application for Interlocutory Injunction, and deponed that the intention of the parties when they engaged in the negotiations was to complete the process by December 2024, which intention was communicated in the 1 st Defendant’s various emails, and that by the emails, the Plaintiffs were also informed that charges and penalties would continue to accrue until the debt was fully settled. He accused the Plaintiffs of engaging in selective reading of the emails on record, and asserted that the figures demanded reflected accrued charges from October 2024 when the parties engaged in the negotiations to December 2025 when the Ruling was delivered by the Court. He then insisted that in his view, the Court’s direction that the parties “ abide to the modalities of settlement ” included recognition of the accrued charges, and that the Court order does not indicate that the balance due was fixed at Kshs 11,000,000/- since the balance was a going concern so long as the debt remained outstanding and charges continued to accrue. He also denied the Plaintiffs’ allegation that the amount of Kshs 1,044,000/- included within the sum of Kshs 2,737,056.80 represents legal fees “sneaked” into the loan amount, and affirmed that the 2 nd Defendant intends to file its Bill of Costs.
9. The Plaintiffs then filed the Supplementary Affidavit sworn on 12/05/2026, again, by the 1 st Plaintiff but which basically repeats matters already deponed.
10. Thereafter, the parties filed written Submissions. The Plaintiffs’ Submissions is dated 12/05/2026, while the Defendants’ is dated 19/05/2026. In both Submissions, the parties basically repeated and restated the contents of their respective Affidavits, and also cited authorities in support of the various limbs of their arguments.
11. I also notice that the Defendants have not, in their Submissions, revisited the challenge raised in their Grounds of Opposition to the effect that the Application is fatally defective for offending Order 9 Rule 5 of the Civil Procedure Rules for want of filing of a Notice of Change of Advocates by the Plaintiffs’ new Advocates. I therefore presume that this objection has been abandoned, correctly in my view since there is indeed on record, the Notice of Change dated 11/02/2026.
Determination
12. Evidently, the immediate issue that calls for determination in this matter is “ whether the demand by the Defendants for payment by the Plaintiffs of the loan the subject of this suit contained additional amounts or items over and above what the Court had directed on 1/12/2025 to be paid by the Plaintiffs, and if so, whether inclusion of such additional figures or items amounted to an act of Contempt of Court by the Defendants” .
13. In Kenya, contempt of Court is governed by Section 5 of the Judicature Act (Cap. 8) , which grants the High Court and the Court of Appeal the power to punish for contempt using the same standards and rules as the High Court of Justice in England. As our statute refers to English practice, Kenyan Courts historically look to English rules (such as the United Kingdom’s Rules of the Supreme Court ) to guide the procedure for committal and contempt applications. This is what Kenyan Courts reverted to after the decision of Mwita J in the case of Kenya Human Rights Commission vs. Attorney General & Another [2018] eKLR , on 9/11/2018, in which he declared the entire then newly enacted Kenyan Contempt of Court Act No. 46 of 2016 to be unconstitutional and invalid for lack of public participation, and also that it encroached upon the independence of the Judiciary.
14. In terms of definition, “Contempt of Court” simply stated, is that conduct or action that defies or disrespects authority of the Court. Black’s Law Dictionary 9 th Edition defines it as follows:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.
15. It is a matter of general acceptance that contempt of Court is in the nature of criminal proceedings and therefore, proof of a case against an alleged contemnor is higher than that of balance of probability. Due to the gravity of the consequences that ordinarily flow from contempt proceedings, it must be clearly demonstrated that the person cited had personal knowledge of that order. To find a person guilty of contempt therefore, there must be proof of “ wilful ” and “ intentional ” disobedience of the Court order. In Mahinderjit Singh Bitta - vs Union of India & Others 1A No. 10 of 2010 the Supreme Court of India stated as follows:
“In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.
16. Knowledge is a question of fact and for a person to be found guilty of contempt, he must be aware of the terms of the order. That is, he must know what the order required him or her to do or not to do but still wilfully and deliberately disobeyed it. This was reiterated in the case of Katsuri Limited v Kapurchand Depor Shah [2016] eKLR , citing Kristen Carla Burchell v Barry Grant Burchell ( Eastern Cape Division Case No 364 of 2005) , in the following term:
“ in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”
17. Looking at the matter before me, I am clear in my mind that no contempt of Court can arise therefrom. What is in issue in this case is merely a case of genuine or legitimate different or conflicting interpretations by the two parties of the same Court order, the one made on 1/12/2025 by Mongare J . This is because a mere disagreement between parties over the interpretation of a Court order does not amount to contempt of Court, provided the party accused acted in good faith. Contempt requires proof of a “ wilful ” and “ deliberate ” violation of a clear and unambiguous command. If an order is genuinely vague or ambiguous, and a party adopts a rational, even if technically flawed, interpretation in good faith, his actions cannot be considered “ wilful ” disobedience. A party genuinely “confused” by the wording of an order should not however simply ignore it, good practice demands that he should return to that Court and seek clarification rather than chose to act unilaterally. Of course, deliberate distortion is unacceptable, i f a party adopts a patently absurd or dishonest interpretation purely as an excuse to bypass clear obligations, the Court may view it as a wilful affront to justice. Where the wording of the order leaves no room for confusion, a party cannot claim “differing interpretation” to shield themselves from liability. Because contempt proceedings are quasi-criminal in nature and carry severe penalties including the possibility of committal to civil jail, the breach must be obvious and proved to a high standard, leaving no room for doubt. In this case, no “ wilful ” and “ deliberate ” disobedience to amount to an act of contempt of Court has therefore been disclosed.
18. Having ruled as above, although there is no specific prayer in the Application asking for interpretation of the order made on 1/12/2025, the partis have extensively canvassed or submitted on what each understood it to have meant. It is therefore clear to me that to move this matter forward, to give directions, and to assist the parties to narrow down their areas of differences, it will be necessary for me to interrogate the order and determine whether it was a clear directive as argued by the Plaintiffs, or whether it was ambiguous as alluded by the Defendants, which issue I now proceed to examine.
19. A perusal of the order of 1/12/2025 reveals that Mon’gare J established three elements. The first is that the parties had “ reached a settlement on the outstanding loan ”, the second is that the parties had reached a settlement on “ modalities of payment ”, and the third is that the 2 nd Defendant was entitled to payment of legal fees. Having established the above three elements, the Judge then directed that the loan balance, obviously as already agreed upon as she had established, be paid in full, and the legal fees payable to the 2 nd Defendant be assessed by the Court in the normal manner of filing a Bill of Costs and subjecting the same to taxation by this Court Division’s Deputy Registrar.
20. The question is, which “ settlement ” agreement was the Judge referring to in her statement that the parties had “ reached a settlement on the outstanding loan ” and, which “ modalities ” was she referring to in her statement that the parties had reached a settlement on “ modalities of payment ”?
21. In answering the above question, it is important to appreciate the context within which the order of 1/12/2024 was made, which is that what came up before Court on that date was the taking of directions on the Plaintiffs’ Application dated 16/09/2025 whereof the Plaintiffs had sought interlocutory injunction to restrain the Defendants from proceeding with the sale of the subject properties. From the addresses made in Court, it is clear that the order was thus made in compromising that Application. I say so because with the order made as recorded, the Application dated 16/09/2025 became spent as there was basically nothing more substantive to determine. The order may even be thus argued to have also determined and settled a substantial portion of main suit.
22. In that Application for Injunction, the response made thereto, and the Submissions, the issue of the agreement contained in the email dated 24/10/2024 featured prominently, and was in fact, the bone of contention. Like the instant Application, the whole suit was basically founded on the alleged breach of that same agreement, with either party blaming the other for breaching it. It is therefore beyond peradventure that it is that Agreement of 24/10/2024 and no other, that Mon’gare J was referring to as confirmation that the parties had “ reached a settlement on the outstanding loan ”.
23. As already observed above, the agreement as captured in the email of 24/10/2024, was in the following terms:
i) Payment of Kshs 9,000,000/- by the Plaintiffs to the 1 st Defendant before the auction date.
ii) Presentation by the Plaintiffs of a letter of undertaking for the remaining balance of Kshs 11,000,000/- as a step in the loan being taken over by Messrs I&M Bank Ltd .
24. The above amounts, no doubt add up to a total sum of Kshs 20,000,000/-. As such, I disagree with the Defendants that no figure was agreed upon as an agreed balance due. It is clear from the above particulars that an aggregate figure was indeed agreed upon as the loan outstanding amount, namely, the sum of Kshs 20,000,000/-. Any lingering doubt on this, if any, is completely dissipated by the contents of the 1 st Plaintiff’s previous email of 22/10/2024, which is the email that had contained the proposal that was eventually accepted by the 1 st Defendant in the subject email of 24/10/2024. The proposal made by the 1 st Plaintiff in that email of 22/10/2024, was crafted in the following terms:
“Hello Phylis
We have reviewed this and per our reading, are amenable to current market value (KES 20Mn based on the 2024 valuation) being full and final for the outstanding debt.
…………………………………………………………………………..”
25. The said email having been accepted via the email of 24/10/2024 as proposed and as such, the sum of Kshs 20,000,000/- having therefore been accepted as the full and final settlement figure, no other additional items to be paid by the Plaintiff could be unilaterally included therein subsequently by one party. As it is not disputed that the Plaintiffs had, in honouring their part of the bargain already made the down payment of Kshs 9,000,000/-, the terms of the agreement took effect and became binding. As such, until and unless there was a breach, the agreement had to be strictly interpreted in that manner, and no additional terms could be implied therein subsequently. The Defendant’s argument that the Plaintiffs were subsequently notified of their obligation to also pay other accruing charges and/or penalties, cannot therefore hold. Similarly, the argument that, despite the agreement, the debt remained a continuing obligation, and that charges were therefore contractually bound to accrue until full settlement, too, cannot be accepted. Looking at the matter from these lenses, the order made by Mon’gare J on 1/12/2024 cannot be said to have been ambiguous at all. It could be easily interpreted.
26. The disagreement that arose later and stalled the process of implementing the agreement was simply the failure by the parties to agree on the contents of the letter of undertaking to pave way for the take-over of the loan by Messrs I&M Bank Ltd . This is because the Plaintiffs protested about the belated inclusion by the Defendants, in the draft letter of undertaking, of a new term requiring the Plaintiffs to also pay legal fees, or at least, the quantum thereof, and also introduction of a term requiring the Plaintiffs to charges and penalties While the Plaintiffs, correctly in my view, contended that they had already acted on the agreement as they had already honoured their part of the bargain by paying to the Defendants the required down payment of Kshs 9,000,000/-, the Plaintiff’s position was that the Plaintiffs had breached the agreement by failing to give the letter of undertaking. As I have already found that the Plaintiffs’ interpretation was the correct one, it follows that they cannot be blamed for the stalling of the agreement.
27. For the same reasons as above, and noting that the issue of freezing of interest during the intervening period featured prominently in the discussions, I find it unconscionable for the Defendant to have continued charging interest and imposing penalties on the loan account when it is the Defendant’s own actions that basically frustrated the deal. This is even more apparent from the fact that the Defendants, on the strength of the same agreement that they are now seeking to trash, already received and kept the down payment of Kshs 9,000,000/-. Contrary to the Defendants’ argument, I find nothing in the email of 15/10/2024 indicating that the Defendant was advised that interest would continue being charged during the intervening period. Surely, the Defendants cannot be allowed to read the agreement of 24/10/2024 selectively, or to probate and approbate it at the same time. The terms of the agreement cannot be only be certain and clear when it suits them but “ambiguous” and “uncertain” when it does not. The Plaintiffs accuse the Defendants of hindering or impeding their right of redemption by declining to proceed with the settlement on account of unjustified reasons. From the above observations, this accusation cannot be outrightly dismissed as lacking merit.
28. As regards the legal fees payable to the 2 nd Defendant by the Plaintiffs, there is no dispute that the item, although not included in the initial agreement of 24/10/2024, is now payable pursuant to the order made by Mon’gare J on 1/12/2024. There is however no explanation why the 2 nd Defendant, having been given a timeline of 14 days to file its Bill of Costs for taxation, has to date, not complied.
Final Orders
29. In the end, the Plaintiffs’ Notice of Motion dated 12/02/2026 seeking a finding of contempt of Court against representatives of the respective Defendants is dismissed.
30. However, to expedite this matter, and facilitate its progression forward, I give orders and directions as follows:
i) Having found that the parties reached a binding agreement on or about 24/10/2024 for settlement of the outstanding loan at the aggregate sum of Kshs 20,000,000/-, in respect to which the Plaintiffs already honoured their first part of the bargain by making the down payment of Kshs 9,000,000/- to the 1 st Defendant, and having found that the stalling of the agreement was not attributable to the Plaintiffs, no interest on the loan, or any penalties or charges accruing after 24/10/2024 on account of alleged default on the part of the Plaintiffs can be justifiably levied or demanded on the loan from that date. Such interest, penalties or charges can only resume being levied or charged, without being back-dated, if the Plaintiffs default on their obligations under the agreement of 24/10/2024, or if the agreement collapses and/or is terminated.
ii) The 2 nd Defendant’s entitlement to payment of legal fees by the Plaintiffs for the services rendered over the transaction is hereby confirmed. In respect thereto, the fourteen (14) days-timeline given to the 2 nd Defendant on 1/12/2025 to file its Bill of Costs is hereby extended by a further period of thirty (30) days . For avoidance of doubt therefore, the Defendants shall not include in their demand for payment of the loan, a specific amount or quantum of the legal fees payable as ascertainment of such quantum has to await taxation of the Bill of Costs.
iii) With the above directions now given, I grant the parties a period of sixty (60) days to discuss and conclude implementation of the remaining part of the agreement, namely, presentation by the Plaintiffs of the letter of undertaking to the Defendants.
iv) There shall be no order on costs in respect to the Application dated 12/02/2026 though dismissed, considering that its filing was contributed to by the actions of the Defendants.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF AUGUST 2026
…………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Mwanzile for the Plaintiffs-Applicants
Mr. Sikuku h/b for Ms. Muthee for the Defendants
Court Assistant: Amos Boso
MILIMANI HCCOMM/E605/2025
2. It is not in dispute that the agreement referred to above is the one contained in the email sent out on 24/10/2024 by a representative of the 1 st Defendant, in response to an email from the 1 st Plaintiff, as part of a series of several emails exchanged in the course of negotiating the terms under which the loan would be taken over by Messrs I&M Bank Ltd . The email of 24/10/2024 was crafted as follows:
“Dear Andrew, Lydia
Thank you for your email.
Upon further review of your proposal, we would like to clarify that we will only proceed with release of the security documents under the following conditions:
1. Receipt of Kshs. 9 million before the auction date.
2. A letter of undertaking for the remaining balance of Kshs 11 million.
We are not inclined to allow payment obligations to extend into the year.
Kind regards,
Phylis Bwabi
Legal Recoveries Portfolio Team Leader
Collections and Recoveries”
3. It is further not in dispute that the Plaintiffs, signifying their acceptance of the above terms, paid to the 1 st Defendant the said sum of Kshs 9,000,000/- thus paving the way for processing of the letter of undertaking as a condition for take-over of the loan, and as a result, the intended auction was cancelled. It is evident that it is the contents of the letter of undertaking that the parties could thereafter not agree upon thus leading to the unfortunate stalling of the deal. It is also evident that the stalemate arose as a result of failure by the parties to agree on inclusion in the letter of undertaking, of payment by the Plaintiffs of the 2 nd Defendants legal fees, and also other charges described as penalties, and/or the quantum thereof.
4. It is also not in dispute that after the suit was filed, when the matter came up in Court on 1/12/2025 before Mon’gare J for taking of directions on the Application for Interlocutory Injunction, an order was made in the presence of Counsels for both sides to the following effect:
“1. THAT the parties having reached a settlement on the outstanding loan and of modalities of payment, the loan balance be paid in full to the Bank.
2. THAT the issue of legal costs be subjected for assessment by the Court.
3. THAT the second Defendant's Advocate has I4 days to file a Bill of Costs for assessment by the Court the normal manner.
4. THAT the matter be mentioned on 2 nd March, 2026 for further directions
5. THAT the parties do abide to the modalities of settlement.
6. THAT the Application is now spent .”
5. The above order however still did not lead to a settlement of the matter as expected as the Plaintiffs filed the instant Application dated 12/02/2026, the subject of this Ruling. The same is filed through the Plaintiffs new Advocates, Messrs CDM Associates Advocates LLP , and seeks orders as follows:
i) That this Honourable Court be pleased to order the 1 st Defendant’s Legal & Compliance Director Mr. Ken Kanyarati and Legal Counsel Mr. Samuel Njuguna, and the 2 nd Defendant’s Mr. Peter Munga Murage to be committed to civil jail for contempt for disobedience of this Honourable Court’s Orders issued on 1 st December 2025.
ii) Costs of this Application be awarded to the Plaintiffs.
6. The Application is supported by the Affidavit sworn by the 1 st Plaintiff who deponed that in disobedience of the said orders made by Mon’gare J on 1/12/2025, the 2 nd Defendant demanded for amounts of USD 128,534.09 and Kshs 2,737,056.80 as at 16/12 2025, in excess of the amount agreed upon in the settlement of 24/10/2024. She urged that the amounts demanded are inclusive of legal fees of Kshs 1,044,000/- which amount was debited from her account on 13/06/2025 despite the subject order having directed that the 2 nd Defendant submit its Bill of Costs for assessment by the Court, which Bill has not been filed to date. She refuted the position taken by the 2 nd Defendants in their letter dated 22/01/2026 claiming that the Court did not specify the quantity or settlement amount payable, or that the Court merely noted that there was existence of negotiations and directed parties to abide by the modalities agreed upon without adopting, recording or endorsing any specific figures as part of the Court order According to her, the phrase in the order of 1/12/2025 directing that “ the parties abide to the modalities of settlement ” was that a sum of Kshs 20,000,000/- be paid by way of a cash deposit of Kshs 9,000,000/- (which was indeed paid in November 2024), and a take-over for the balance of Kshs 11,000,000/- to follow. She also refuted the 1 st Defendant’s position that the settlement was still under negotiation and was never concluded, insisting that proof of the Agreement is evidenced by contents of the letters attached and the Defendants’ own previous Affidavit filed in response to the Application for interlocutory Injunction.
7. In opposing the Application, the Defendants filed the Grounds of Opposition dated 25/02/2026 in which it was contended that the Application is fatally defective as it offends Order 9 Rule 5 for want of filing of a Notice of Change of Advocates, that the Order of 1/12/2025 does not disclose the sums payable to warrant a claim for Contempt of Court as the Order was ambiguous, and did not disclose the sums payable as legal costs. It was thus asserted that a disagreement on the quantum of legal costs cannot amount to contempt of Court and, as such, the Application is solely intended to vex the 2 nd Defendant to forego its accrued legal costs. It was further stated that the Plaintiffs have come before Court with unclean hands as even the purported balance of Kshs 11,000,000/- of the “agreed amount” of the Kshs 20,000,000/- has never been paid.
8. The Defendants, additionally, filed the Replying Affidavit sworn on 5/05/2026 by Samuel Njuguna , who introduced himself as the 1 st Defendant’s Legal Counsel-Recoveries. He referred the Court to the contents of his earlier Affidavit sworn in response to the Application for Interlocutory Injunction, and deponed that the intention of the parties when they engaged in the negotiations was to complete the process by December 2024, which intention was communicated in the 1 st Defendant’s various emails, and that by the emails, the Plaintiffs were also informed that charges and penalties would continue to accrue until the debt was fully settled. He accused the Plaintiffs of engaging in selective reading of the emails on record, and asserted that the figures demanded reflected accrued charges from October 2024 when the parties engaged in the negotiations to December 2025 when the Ruling was delivered by the Court. He then insisted that in his view, the Court’s direction that the parties “ abide to the modalities of settlement ” included recognition of the accrued charges, and that the Court order does not indicate that the balance due was fixed at Kshs 11,000,000/- since the balance was a going concern so long as the debt remained outstanding and charges continued to accrue. He also denied the Plaintiffs’ allegation that the amount of Kshs 1,044,000/- included within the sum of Kshs 2,737,056.80 represents legal fees “sneaked” into the loan amount, and affirmed that the 2 nd Defendant intends to file its Bill of Costs.
9. The Plaintiffs then filed the Supplementary Affidavit sworn on 12/05/2026, again, by the 1 st Plaintiff but which basically repeats matters already deponed.
10. Thereafter, the parties filed written Submissions. The Plaintiffs’ Submissions is dated 12/05/2026, while the Defendants’ is dated 19/05/2026. In both Submissions, the parties basically repeated and restated the contents of their respective Affidavits, and also cited authorities in support of the various limbs of their arguments.
11. I also notice that the Defendants have not, in their Submissions, revisited the challenge raised in their Grounds of Opposition to the effect that the Application is fatally defective for offending Order 9 Rule 5 of the Civil Procedure Rules for want of filing of a Notice of Change of Advocates by the Plaintiffs’ new Advocates. I therefore presume that this objection has been abandoned, correctly in my view since there is indeed on record, the Notice of Change dated 11/02/2026.
Determination
12. Evidently, the immediate issue that calls for determination in this matter is “ whether the demand by the Defendants for payment by the Plaintiffs of the loan the subject of this suit contained additional amounts or items over and above what the Court had directed on 1/12/2025 to be paid by the Plaintiffs, and if so, whether inclusion of such additional figures or items amounted to an act of Contempt of Court by the Defendants” .
13. In Kenya, contempt of Court is governed by Section 5 of the Judicature Act (Cap. 8) , which grants the High Court and the Court of Appeal the power to punish for contempt using the same standards and rules as the High Court of Justice in England. As our statute refers to English practice, Kenyan Courts historically look to English rules (such as the United Kingdom’s Rules of the Supreme Court ) to guide the procedure for committal and contempt applications. This is what Kenyan Courts reverted to after the decision of Mwita J in the case of Kenya Human Rights Commission vs. Attorney General & Another [2018] eKLR , on 9/11/2018, in which he declared the entire then newly enacted Kenyan Contempt of Court Act No. 46 of 2016 to be unconstitutional and invalid for lack of public participation, and also that it encroached upon the independence of the Judiciary.
14. In terms of definition, “Contempt of Court” simply stated, is that conduct or action that defies or disrespects authority of the Court. Black’s Law Dictionary 9 th Edition defines it as follows:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.
15. It is a matter of general acceptance that contempt of Court is in the nature of criminal proceedings and therefore, proof of a case against an alleged contemnor is higher than that of balance of probability. Due to the gravity of the consequences that ordinarily flow from contempt proceedings, it must be clearly demonstrated that the person cited had personal knowledge of that order. To find a person guilty of contempt therefore, there must be proof of “ wilful ” and “ intentional ” disobedience of the Court order. In Mahinderjit Singh Bitta - vs Union of India & Others 1A No. 10 of 2010 the Supreme Court of India stated as follows:
“In exercise of its contempt jurisdiction the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution.
16. Knowledge is a question of fact and for a person to be found guilty of contempt, he must be aware of the terms of the order. That is, he must know what the order required him or her to do or not to do but still wilfully and deliberately disobeyed it. This was reiterated in the case of Katsuri Limited v Kapurchand Depor Shah [2016] eKLR , citing Kristen Carla Burchell v Barry Grant Burchell ( Eastern Cape Division Case No 364 of 2005) , in the following term:
“ in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”
17. Looking at the matter before me, I am clear in my mind that no contempt of Court can arise therefrom. What is in issue in this case is merely a case of genuine or legitimate different or conflicting interpretations by the two parties of the same Court order, the one made on 1/12/2025 by Mongare J . This is because a mere disagreement between parties over the interpretation of a Court order does not amount to contempt of Court, provided the party accused acted in good faith. Contempt requires proof of a “ wilful ” and “ deliberate ” violation of a clear and unambiguous command. If an order is genuinely vague or ambiguous, and a party adopts a rational, even if technically flawed, interpretation in good faith, his actions cannot be considered “ wilful ” disobedience. A party genuinely “confused” by the wording of an order should not however simply ignore it, good practice demands that he should return to that Court and seek clarification rather than chose to act unilaterally. Of course, deliberate distortion is unacceptable, i f a party adopts a patently absurd or dishonest interpretation purely as an excuse to bypass clear obligations, the Court may view it as a wilful affront to justice. Where the wording of the order leaves no room for confusion, a party cannot claim “differing interpretation” to shield themselves from liability. Because contempt proceedings are quasi-criminal in nature and carry severe penalties including the possibility of committal to civil jail, the breach must be obvious and proved to a high standard, leaving no room for doubt. In this case, no “ wilful ” and “ deliberate ” disobedience to amount to an act of contempt of Court has therefore been disclosed.
18. Having ruled as above, although there is no specific prayer in the Application asking for interpretation of the order made on 1/12/2025, the partis have extensively canvassed or submitted on what each understood it to have meant. It is therefore clear to me that to move this matter forward, to give directions, and to assist the parties to narrow down their areas of differences, it will be necessary for me to interrogate the order and determine whether it was a clear directive as argued by the Plaintiffs, or whether it was ambiguous as alluded by the Defendants, which issue I now proceed to examine.
19. A perusal of the order of 1/12/2025 reveals that Mon’gare J established three elements. The first is that the parties had “ reached a settlement on the outstanding loan ”, the second is that the parties had reached a settlement on “ modalities of payment ”, and the third is that the 2 nd Defendant was entitled to payment of legal fees. Having established the above three elements, the Judge then directed that the loan balance, obviously as already agreed upon as she had established, be paid in full, and the legal fees payable to the 2 nd Defendant be assessed by the Court in the normal manner of filing a Bill of Costs and subjecting the same to taxation by this Court Division’s Deputy Registrar.
20. The question is, which “ settlement ” agreement was the Judge referring to in her statement that the parties had “ reached a settlement on the outstanding loan ” and, which “ modalities ” was she referring to in her statement that the parties had reached a settlement on “ modalities of payment ”?
21. In answering the above question, it is important to appreciate the context within which the order of 1/12/2024 was made, which is that what came up before Court on that date was the taking of directions on the Plaintiffs’ Application dated 16/09/2025 whereof the Plaintiffs had sought interlocutory injunction to restrain the Defendants from proceeding with the sale of the subject properties. From the addresses made in Court, it is clear that the order was thus made in compromising that Application. I say so because with the order made as recorded, the Application dated 16/09/2025 became spent as there was basically nothing more substantive to determine. The order may even be thus argued to have also determined and settled a substantial portion of main suit.
22. In that Application for Injunction, the response made thereto, and the Submissions, the issue of the agreement contained in the email dated 24/10/2024 featured prominently, and was in fact, the bone of contention. Like the instant Application, the whole suit was basically founded on the alleged breach of that same agreement, with either party blaming the other for breaching it. It is therefore beyond peradventure that it is that Agreement of 24/10/2024 and no other, that Mon’gare J was referring to as confirmation that the parties had “ reached a settlement on the outstanding loan ”.
23. As already observed above, the agreement as captured in the email of 24/10/2024, was in the following terms:
i) Payment of Kshs 9,000,000/- by the Plaintiffs to the 1 st Defendant before the auction date.
ii) Presentation by the Plaintiffs of a letter of undertaking for the remaining balance of Kshs 11,000,000/- as a step in the loan being taken over by Messrs I&M Bank Ltd .
24. The above amounts, no doubt add up to a total sum of Kshs 20,000,000/-. As such, I disagree with the Defendants that no figure was agreed upon as an agreed balance due. It is clear from the above particulars that an aggregate figure was indeed agreed upon as the loan outstanding amount, namely, the sum of Kshs 20,000,000/-. Any lingering doubt on this, if any, is completely dissipated by the contents of the 1 st Plaintiff’s previous email of 22/10/2024, which is the email that had contained the proposal that was eventually accepted by the 1 st Defendant in the subject email of 24/10/2024. The proposal made by the 1 st Plaintiff in that email of 22/10/2024, was crafted in the following terms:
“Hello Phylis
We have reviewed this and per our reading, are amenable to current market value (KES 20Mn based on the 2024 valuation) being full and final for the outstanding debt.
…………………………………………………………………………..”
25. The said email having been accepted via the email of 24/10/2024 as proposed and as such, the sum of Kshs 20,000,000/- having therefore been accepted as the full and final settlement figure, no other additional items to be paid by the Plaintiff could be unilaterally included therein subsequently by one party. As it is not disputed that the Plaintiffs had, in honouring their part of the bargain already made the down payment of Kshs 9,000,000/-, the terms of the agreement took effect and became binding. As such, until and unless there was a breach, the agreement had to be strictly interpreted in that manner, and no additional terms could be implied therein subsequently. The Defendant’s argument that the Plaintiffs were subsequently notified of their obligation to also pay other accruing charges and/or penalties, cannot therefore hold. Similarly, the argument that, despite the agreement, the debt remained a continuing obligation, and that charges were therefore contractually bound to accrue until full settlement, too, cannot be accepted. Looking at the matter from these lenses, the order made by Mon’gare J on 1/12/2024 cannot be said to have been ambiguous at all. It could be easily interpreted.
26. The disagreement that arose later and stalled the process of implementing the agreement was simply the failure by the parties to agree on the contents of the letter of undertaking to pave way for the take-over of the loan by Messrs I&M Bank Ltd . This is because the Plaintiffs protested about the belated inclusion by the Defendants, in the draft letter of undertaking, of a new term requiring the Plaintiffs to also pay legal fees, or at least, the quantum thereof, and also introduction of a term requiring the Plaintiffs to charges and penalties While the Plaintiffs, correctly in my view, contended that they had already acted on the agreement as they had already honoured their part of the bargain by paying to the Defendants the required down payment of Kshs 9,000,000/-, the Plaintiff’s position was that the Plaintiffs had breached the agreement by failing to give the letter of undertaking. As I have already found that the Plaintiffs’ interpretation was the correct one, it follows that they cannot be blamed for the stalling of the agreement.
27. For the same reasons as above, and noting that the issue of freezing of interest during the intervening period featured prominently in the discussions, I find it unconscionable for the Defendant to have continued charging interest and imposing penalties on the loan account when it is the Defendant’s own actions that basically frustrated the deal. This is even more apparent from the fact that the Defendants, on the strength of the same agreement that they are now seeking to trash, already received and kept the down payment of Kshs 9,000,000/-. Contrary to the Defendants’ argument, I find nothing in the email of 15/10/2024 indicating that the Defendant was advised that interest would continue being charged during the intervening period. Surely, the Defendants cannot be allowed to read the agreement of 24/10/2024 selectively, or to probate and approbate it at the same time. The terms of the agreement cannot be only be certain and clear when it suits them but “ambiguous” and “uncertain” when it does not. The Plaintiffs accuse the Defendants of hindering or impeding their right of redemption by declining to proceed with the settlement on account of unjustified reasons. From the above observations, this accusation cannot be outrightly dismissed as lacking merit.
28. As regards the legal fees payable to the 2 nd Defendant by the Plaintiffs, there is no dispute that the item, although not included in the initial agreement of 24/10/2024, is now payable pursuant to the order made by Mon’gare J on 1/12/2024. There is however no explanation why the 2 nd Defendant, having been given a timeline of 14 days to file its Bill of Costs for taxation, has to date, not complied.
Final Orders
29. In the end, the Plaintiffs’ Notice of Motion dated 12/02/2026 seeking a finding of contempt of Court against representatives of the respective Defendants is dismissed.
30. However, to expedite this matter, and facilitate its progression forward, I give orders and directions as follows:
i) Having found that the parties reached a binding agreement on or about 24/10/2024 for settlement of the outstanding loan at the aggregate sum of Kshs 20,000,000/-, in respect to which the Plaintiffs already honoured their first part of the bargain by making the down payment of Kshs 9,000,000/- to the 1 st Defendant, and having found that the stalling of the agreement was not attributable to the Plaintiffs, no interest on the loan, or any penalties or charges accruing after 24/10/2024 on account of alleged default on the part of the Plaintiffs can be justifiably levied or demanded on the loan from that date. Such interest, penalties or charges can only resume being levied or charged, without being back-dated, if the Plaintiffs default on their obligations under the agreement of 24/10/2024, or if the agreement collapses and/or is terminated.
ii) The 2 nd Defendant’s entitlement to payment of legal fees by the Plaintiffs for the services rendered over the transaction is hereby confirmed. In respect thereto, the fourteen (14) days-timeline given to the 2 nd Defendant on 1/12/2025 to file its Bill of Costs is hereby extended by a further period of thirty (30) days . For avoidance of doubt therefore, the Defendants shall not include in their demand for payment of the loan, a specific amount or quantum of the legal fees payable as ascertainment of such quantum has to await taxation of the Bill of Costs.
iii) With the above directions now given, I grant the parties a period of sixty (60) days to discuss and conclude implementation of the remaining part of the agreement, namely, presentation by the Plaintiffs of the letter of undertaking to the Defendants.
iv) There shall be no order on costs in respect to the Application dated 12/02/2026 though dismissed, considering that its filing was contributed to by the actions of the Defendants.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18 TH DAY OF AUGUST 2026
…………………..
WANANDA JOHN R. ANURO
JUDGE
Delivered in the presence of:
Mr. Mwanzile for the Plaintiffs-Applicants
Mr. Sikuku h/b for Ms. Muthee for the Defendants
Court Assistant: Amos Boso
MILIMANI HCCOMM/E605/2025