REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL APPEAL NO. E010 OF 2025
(Coram: Andayi W. F., J.)
MARY CHARLES KALINGA......................................................APPELLANT/APPLICANT
VERSUS
1. INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION .......................................................1 ST RESPONDENT
2. FARTUN MOHAMMED MUSA....................................................2 ND RESPONDENT
3. JOSEPHINE WAIRIMU KINYANJUI...........................................3 RD RESPONDENT
4. AUGUSTINE NDEGWA...................................................................4 TH RESPONDENT
5. MULKI ABDULLAHI ADAN..........................................................5 TH RESPONDENT
6. KHADIJA NGALA..............................................................................6 TH RESPONDENT
7. MELDTER I. NYAKITI.....................................................................7 TH RESPONDENT
8. KENGO JUDY CHIZI.........................................................................8 TH RESPONDENT
9. RUWA ELIZABETH MWANGOLA..............................................9 TH RESPONDENT
10. TERESIA B. MUOKI......................................................................10 TH RESPONDENT
11. RACHEL KATUMBI MUTISYA..................................................10 TH RESPONDENT
AND
THE COUNTY ASSEMBLY OF KWALE ...................................1 ST INTERESTED PARTY
THE SPEAKER COUNTY ASSEMBLY OF KWALE ............. 2 ND INTERESTED PARTY
THE CLERK COUNTY ASSEMBLY OF KWALE ...................3 RD INTERESTED PARTY
IN THE MATTER OF CONTEMPT OF COURT PROCEEDINGS AGAINST:
MARJAN HUSSEIN MARJAN, SETH MWATELA KAMANZA, FATUMA HASSAN MWALUPA, FARTUN МОНАМED MUSA, JOSEPHINE WAIRIMU KINYANJUI, AUGUSTINE NDEGWA, MULKI ABDULLAHI ADAN AND RACHAEL KATUMBI MUTISYA
RULING
1. This ruling relates to two applications. It concludes the first application dated 5 th December 2024 and also determines the application dated 23 rd June 2026 by the same applicant. The applications are basically the same as will be seen shortly.
2. This matter arose from an election petition filed in the Magistrates’ Court by the appellant/applicant herein. The election petition was dismissed by the trial court and the appellant, dissatisfied with that decision appealed to this court. On 14 th September 2023 this court, Hon. Mr. Justice Magare Dennis Kizito Ngwono allowed the appeal and set aside the judgment of the trial court to a large extent and substituted it with orders inter alia as are relevant to the present application that:
i. A declaration that Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya, the 2 nd , 3 rd , 4 th , 5 th and 11 th respondents herein were not validly elected as nominated members of the County Assembly of Kwale and as such declared the said seats as vacant,
ii. Certificates under section 86 of the Elections Act to issue accordingly.
iii. The 1 st respondent, IEBC to choose from the qualifying lists provided by the parties in the proportions of the votes garnered by prioritizing under the marginalized groups as provided in section 36 of the Elections Act.
iv. The IEBC to conclude nominations to fill the vacant seats within 14 days.
v. None of the candidates found to have been invalidly elected are eligible for re-election.
vi. The Clerk to the County Assembly of Kwale to ensure the newly nominated persons were sworn on the nearest Tuesday within 7 days of appointment;
3. Further appeals by the respondents to the Court of Appeal and Supreme Court were dismissed. The Court of Appeal decision was made on 22 nd March 2024 while the Supreme Court decision was rendered on 28 th June 2024.
4. The 5 th respondent filed a constitutional petition in Kwale High Court Constitutional and Human Rights Petition No. E003 of 2024 Mulki Abdullahi Adan vs Independent Electoral and Boundaries Commission and Speaker, County Government of Kwale, alleging breaches of her fundamental rights under the constitution. The penultimate prayer in the constitutional petition was that this court grants a declaration that the petitioner (5 th respondent herein) is a duly nominated member of the County Assembly of Kwale under Article 177 of the constitution and a mandatory order of injunction be issued directing the IEBC and the Speaker of the County Assembly of Kwale to accept, uphold and allow the petitioner’s nomination as a member of the County Assembly of Kwale and the right to participate in all the proceedings of the Assembly.
5. Alongside the petition she filed an application dated 8 th July 2024 praying for an interim conservatory order of injunction restraining her de-gazettement as the duly nominated member of the County Assembly of Kwale by United Democratic Movement (UDM) party and the 2 nd respondent from swearing any new nominated member by UDM. Interim conservatory orders of injunction were granted on 16 th September 2024 in the terms sought meaning that implementation of the judgment of this court dated 14 th September 2023 was halted and the 5 th respondent herein continued to serve as an elected nominated member of the County Assembly of Kwale. The constitutional petition by the 5 th respondent was subsequently struck out on 22 nd January 2026.
6. The appellant herein filed the Notice of Motion dated 5 th December 2024 seeking the following orders:
i. A prohibitive injunction/freezing order do issue forthwith against the County Assembly of Kwale staying and freezing payment of salaries, remuneration, allowances, perks and benefits to the 2 nd 3 rd , 4 th , 5 th , and 11 th respondents from the date of filing this application until the hearing and determination of the appellant's/applicant's application.
ii. a prohibitive injunction does issue forthwith barring and prohibiting the 2 nd , 3 rd , 4 th , 5 th , and 11 th respondents from attending the County Assembly of Kwale House and Committee sittings and events and conducting/transacting any business of the Kwale County Assembly whether official or otherwise.
iii. leave be granted to the appellant/applicant to institute contempt of Court proceedings against the 1 st , 2 nd , 3 rd , 4 th , 5 th and 11 th respondents and the 1 st Interested Party, 2 nd Interested Party and 3 rd Interested Party namely Marjan Hussein Marjan, Seth Mwatela Kamanza and Fatuma Hassan Mwalupa and the 2 nd , 3 rd , 4 th , 5 th , and 11 th respondents and the Kwale County Assembly respectively.
iv. the Court issues warrants of arrest and commit Marjan Hussein Marjan, Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya to prison for their willful and contemptuous disobedience of lawful and valid Court Orders issued on 14 th September 2023 and their continued unlawful actions and omissions in disobedience of the orders.
7. This court upon considering the application exhaustively delivered a partial ruling on that, ending with the following remarks and orders:
“At this point, I find that it will be remiss of this court to proceed with the determination of this application when information has been brought to its attention by learned counsels, including learned counsel for the applicant, as officers of this court, that there could be orders staying proceedings in this matter. It is only fair that this court gets sight of those orders in order to appreciate their full purport and tenure before proceeding further. For instance, this court has found that the orders in Kwale CHR Petition No. E003 of 2024 affected the 5 th respondent. That means that R1, R2, R3, R4 and R11 could not claim to enjoy the protection of those orders.
Contempt of court proceedings are meant to ensure that the dignity of the court is preserved through observance of its orders but more fundamentally that the rule of law is upheld all the time (see the case of Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another Civil Application No.39 of 1990 as reported in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) . That is why it is quasi criminal in nature and the standard of proof is higher than in ordinary civil proceedings of a balance of probability but lower than beyond .
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] KEHC 9233 (KLR) it was held that the breach complained of has to be both deliberate and mala fide .
The respondents who have appeared herein and the Interested Parties have raised the issue of there being a court order affecting the proceedings herein to the extent that they could not even respond thereto. Since the respondents failed to make available to this court the said conservatory orders this court now directs its Deputy Registrar (DR) to liaise with the DR Milimani Constitutional and HR division to assist in accessing the proceedings and/or orders, rulings and/or judgment in Nairobi HC, Milimani CHR Petition No. 329 of 2024 ( this should have been E369 of 2025) after which this court will issue further directions on the ruling in the present application.
8. This court has now received and read the judgment of the High Court at Milimani in Munga & 3 others v Independent Electoral and Boundaries Commission & 6 others [2026] KEHC 6904 (KLR) delivered on 29 th April 2026 wherein the court dismissed both the petition and cross-petition and vacated conservatory orders issued earlier on 15 th August 2024 which preserved the status quo thereby enabling the 2 nd to 6 th respondents to continue holding office as Members of County Assembly of Kwale elected by way of nomination.
9. In its said judgment the High Court stated that:
“At its core, the Petition challenges the legality and constitutionality of a prior decision of the High Court sitting in its election appellate jurisdiction in Mombasa High Court Election Petition Appeal No. E087 of 2023, which nullified the Petitioners’ nomination as Members of the County Assembly of Kwale on the basis of alleged ineligibility relating to residency and voter registration requirements. The Petitioners contend that the said decision was erroneous in law, constitutionally infirm, and has precipitated imminent actions including their degazettment and removal from office.”
10. The said judgment therefore confirmed that there were conservatory order issued maintain the status quo. It is important to note that the conservatory orders in that petition were issued by consent of the parties and continued to subsist until the court rendered its judgment on 29 th April 2026.
11. It was thus imperative that this court gets to know the extent of those conservatory orders as had been alluded to by learned counsels before concluding on the ruling in the application for contempt by the applicant dated 5 th December 2024. In view of the said conservatory orders, it follows that the 1 st , 2 nd to 5 th and 11 th respondents namely IEBC, Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachel Katumbi Mutisya respectively cannot be held to have deliberately and through mala fides failed to obey this court’s orders issued on 14 th September 2023. In fact, even as the applicant herein was filing the application dated 5 th December 2024 she was well aware of the conservatory orders of which she had acquiesced.
12. Subsequent to this court’s partial ruling herein delivered on 9 th March 2026 and the delivery of the judgment in the Nairobi petition on 29 th April 2026 the applicant filed a fresh notice of motion application dated 23 rd June 2026 with the parties as in the application of 5 th December 2024 but has now added the following tile and parties:
IN THE MATTER OF CONTINUED BREACH, VIOLATION AND CONTEMPT OF COURT ORDERS ISUED ON 14 TH SEPTEMBER 2023 BY HON. JUSTICE KIZITO MAGARE ORDERING THE 2 ND TO 6 TH RESPONDENTS TO VACATE OFFICE AND FOR THE SPEAKER KWALE COUNTY ASSEMBLY TO DECLARE VACANCIES AND SWEAR IN THE IEBC GAZETTED NOMINEES INCLUDING THE APPELLANT AND FOUR (4) OTHER NEW NOMINEES AS NOMINATED MCAS, KWALE COUNTY ASSEMBLY.
IN THE MATTER OF CONTINUED BREACH, VIOLATION AND CONTEMPT OF COURT ORDERS ISSUED ON 14 TH SEPTEMBER 2023 CONDEMNING THE IEBC TO PAY KES. 500,000/= TO THE APPELLANT BEING COSTS OF THE ELECTION PETITION
AND
IN THE MATTER OF CONTEMPT OF COURT PROCEEDINGS AGAINST: -
1. THE SPEAKER KWALE COUNTY ASSEMBLY_
HON. SETH MWATELA KAMANZA ..............................1 ST CONTEMNOR
2. THE CLERK &LEGAL ADVISOR KWALE COUNTY ASSEMBLY_ FATUMA HASSAN MWALUPA ……....………………… 2 ND CONTEMNOR
3. THE IEBC ACCOUNTING OFFICER,
MOSES LEDAMA SUNKULI………………………………3 RD CONTEMNOR
4. THE IEBC ELECTIONS MANAGER KWALE COUNTY_
AMINA HUSSEIN SOUD………………………..…………4 TH CONTEMNOR
5. THE IEBC FINANCE DIRECTOR_
RUEBEN C. KIPROTICH …. ............................................5 TH CONTEMNOR
6. FARTUN MOHAMMED MUSA ……………..……………6 TH CONTEMNOR
7. JOSEPHINE WAIRIMU KINYANJUI …………………..7 TH CONTEMNOR
8. AUGUSTINE NDEGWA ……………………………………8 TH CONTEMNOR
9. MULKI ABDULLAHI ADAN ……………………………...9 TH CONTEMNOR
10. RACHEL KATUMBI MUTISYA …………………….....10 TH CONTEMNOR
13. By the said motion the applicant seeks the following orders:
i. The court to issue Notices to Show Cause and Summons to attend court at the earliest to the contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya to show cause why they should not be cited for their disobedience and contempt of lawful court orders issued on 14 th September 2023 by Hon. Justice Dennis Kizito Magare.
ii. In default or on the contemnors’ refusal, failure and neglect to physically attend court to honour the notices to show cause and summons to attend court as prayed for hereinabove and ordered by Court, the Court be pleased to forthwith issue warrants of arrest as against Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya who are al based in Kwale and the warrants of arrest to be informed by the OCS Kwale Police Station in conjunction with the OCPD Kwale County and Kwale County Regional Police Commander Reginald Omaria Omukaga.
iii. The warrants of arrest against Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Abdullahi Adan and Rachel Katumbi Mutisya be executed and enforced by the Officer Commanding Station (OCS) Kwale Police Station in conjunction with the OCPD Kwale County while the warrants of arrest against Moses Ledama Sunkuli and Reuben C. Kiprotich who are IEBC Officers based in Nairobi be enforced by the OCS Central Police Station Nairobi Dishon Angoya in Conjunction with the Nairobi Regional Police Commander Issa Mohamud.
iv. In case of refusal, failure and neglect to enforce the warrants of arrest against the named contemnors within the strict court stipulated timelines, the court issues Summons to attend Court and Notice to show cause to the OCS Kwale Police, the OCPD Kwale County, Kwale County Regional Police Commander Reginald Omaria Omukaga, OCS Central Police Station Nairobi Dishon Angoya and the Nairobi Regional Police Commander Issa Mohamud.
v. The court to cite and find the Contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya to be in contempt of court orders for blatantly violating and disobeying this court’s orders issued by Hon. Dennis Kizito Magare on 14 th September 2023.
vi. The court to sanction and commit to civil jail for six (6) months and issue other appropriate penalties, sanctions and sentences to the contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya for willfully and blatantly disobeying the court’s orders dated 14 th September 2023.
vii. The court to order the Speaker and Clerk Kwale County Assembly respectively together with IEBC to immediately declare vacancies in the office of five (5) nominated members of Kwale County Assembly whose election was nullified and proceed to gazette and within 7 days thereof swear in Mary Charles Kalinga(PAA Party) Mwanauba Omar Mwaphatsa (ODM Party), Bakari Mwafrika Mwakilesho (ODM Party) Luvuno Zawadi Jackson(PAA Party) and 1 other suitable and qualified person from UDA as the new nominated MCAS Kwale County Assembly.
viii. The court to order the 2 nd to 6 th Respondents to jointly and severally reimburse the Appellant/Applicant loss of monthly salary earnings for the period between 14 th September 2023 until the date of her gazettement as an MCA or until the date of the Ruling on this application based on the average gross monthly pay of an elected MCA of KShs. 150,944.30.
ix. The contemnors be ordered to jointly and severally pay the costs of this application to the Appellant/Applicant within thirty (30) days of determination of this application.
14. The grounds in support of the application as set out on the face thereof and expounded in the affidavit of Mary Charles Kalinga sworn on 23 rd June 2026. Besides repeating most of the issues which are well within this court’s knowledge as they are on record, most of the grounds are a repetition of the grounds in the earlier application dated 5 th December 2024. The applicant’s main contention is that the 2 nd to 5 th and 11 th Respondent’s election by way of nomination to the County Assembly of Kwale having been nullified by the court on 14 th September 2023 they continue to occupy office unlawfully with the countenance and permission of the Speaker and Clerk of the County Assembly of Kwale together with the IEBC who have refused to declare and gazette vacancies in the said offices despite numerous reminders.
15. It is the applicant’s further contention that upon declaration and gazettment of vacancies for the said offices, as per the court’s orders, she not only qualifies but should be gazette to one of those positions alongside others namely Mwanauba Omar Mwaphatsa, Bakari Mwafrika Wakilesho, Zawadi Jackson Luvuno and one further person as will be determined by the IEBC.
16. She deposes further that from 14 th September 2023 to July 2024, the respondents were not ejoying any conservatory orders that would have prevented them from complying with the court’s orders issued on 14 th September 2023
17. Some of those grounds can be termed outrageous because they do not arise from the judgment of this court dated 14 th September 2023 yet the applicant asserts that the court made such orders and the application seeks to cite the respondents and alleged contemnors for failing to implement the court’s orders. Such grounds cannot be found to be in support of the application for contempt. Consequently, the orders sought based on those grounds that the applicant Mary Charles Kalinga, Mwanauba Omar Mwaphatsa, Bakari Mwafrika Mwakilesho and Luvuno Zawadi Jackson be gazetted to fill the vacancies arising from the court’s judgment and that they be paid the sums that have since been paid to the 2 nd to 6 th Respondents cannot be granted and are declined.
18. The 1 st Interested Party and 2 nd Interested Party, the County Assembly of Kwale and the Speaker of the County Assembly of Kwale respectively filed a common replying affidavit, through Seth Mwatela Kamanza, the Speaker of the County Assembly of Kwale sworn, on 28 th November 2025 in response to the application dated 5 th December 2024. He deposes that they could not have been brought into the proceedings as interested parties without the applicant first seeking leave of the court and without demonstrating that the two have a personal and identifiable interest and stake in the matter and therefore proper and necessary parties to the proceedings. Unfortunately, the parties rely on the definition of Interested Party defined under the provisions of Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Mutunga Rules”) when the application herein is not a constitutional petition but arises from an election petition appeal.
19. Further that the application fails to satisfy the procedure for instituting contempt of court proceedings and is therefore incompetent.
20. He deposes further that at the time the present application was filed by the appellant, there were existing conservatory orders issued on 16 th July 2024 by the High Court at Kwale in Constitutional Petition No. E003 of 2024; Mulki Abdullahi Adan v IEBC & Speaker County Assembly of Kwale and Mary Charles Kalinga , and further on 31 st July 2024 by the High Court at Milimani in Constitutional Petition No. E369 of 2024; Augustine Ndegwa & Others v IEBC & Speaker County Assembly of Kwale & Others , staying the implementation of the same judgment sought to be enforced herein by the appellant, who was also a party to the said petitions. He deposes further that following those orders the Interested Parties could not take any action in line with the judgment of this court delivered on 14 th September 2023 until those orders were lifted and so the application for contempt of court has no basis.
21. He deposes further that none of the Interested Parties herein were parties to the Election Petition Appeal, and the orders issued by the Election Court therein were directed primarily to the IEBC for implementation in accordance with its mandate under the provisions of Article 88(4)(d) of the Constitution, as read together with section 4(d) of the IEBC Act 2011, and sections 27, 31, 34, 36, and 37 of the Elections Act 2011 and therefore cannot be held liable for any alleged inaction concerning implementation of the said judgment.
22. The 1 st and 2 nd Interested Parties therefore state that the applicant has failed to demonstrate by evidence that the Interested Parties have acted wilfully, deliberately, or with mala fides to disobey any court order.
23. Seth Mwatela Kamanza, the Speaker of the County Assembly of Kwale the 2 nd IP who has now been cited personally as the 1 st Contemnor filed his replying affidavit sworn on 9 th July 2026 to the application dated 23 rd June 2026.
24. He basically repeats the depositions in the earlier affidavit and further that they have acted in good faith, and not out of any intention to disobey the court order or to undermine the authority of the court as there have been orders from courts staying implementation of this court’s orders.
25. He deposes further that the application does not meet the threshold for contempt of court proceedings especially since the applicant has not demonstrated that the IPs had knowledge and ability to comply with the court orders but deliberately failed to do so of the court orders the subject of these proceedings.
26. Fatuma Hassan Mwalupa, the Clerk of the County Assembly of Kwale, the 3 rd IP and 2 nd alleged contemnor filed a replying affidavit sworn on 8 th July 2026. It bears the same contents as that of the Speaker of the County Assembly.
27. Josephine Kinyanjui, the 3 rd Respondent and alleged 7 th Contemnor filed a replying affidavit sworn on 29 th July 2026. She deposes that:
a. There is no sufficient evidence adduced by the applicant to support the grant of the orders sought and the application does not meet the threshold for contempt application and committal to civil jail, which is higher than proof on a balance of probabilities, though not as high proof beyond reasonable doubt.
b. She denies that she has by acts of omission or commission denied the Applicant enjoyment of the fruits of judgement. Further that it is a mischaracterization of the applicant to deem herself as a successful decree-holder.
c. She deposes that she was shortlisted and nominated under the marginalized group while the Applicant was nominated in the Gender special seat nominee (for gender top up) which are different and distinct in law which distinction is pursuant to provisions of Article 177 (1) (c) of the constitution wherein she was nominated and Article 177 (1) (b) wherein the Applicant was nominated.
d. That should either of the said seats fall vacant the provisions of Section 36 of the Elections Act kick in wherein the order in priority of the nominees is followed. It is worth noting that while following the next in line rule, regard must be made not to offend the two third constitutional imperative.
e. Further that Party-list nominations do not operate on the basis of direct substitution by judicial fiat, rather, they are governed by party lists and processes subject to constitutional and statutory oversight. The Applicant cannot hide under contempt proceedings to circumvent constitutional and statutory oversight.
f. That she was in the courts seeking of legal redress consequent to the judgment dated 14 th September 2023 as she exercised her right to seek redress in the superior courts in what she believed was a legitimate cause of action.
g. Therefore, she remains a law-abiding citizen and she is not aware of any gazette notice or letter from the 1 st Respondent that has declared her seat vacant. To this end, she has continued to execute her mandate as a nominated Member of County Assembly in accordance with the law.
28. Rachael Katumbi Mutisya, the 6 th Respondent and 10 th alleged contemnor also opposed the application by way of a replying affidavit sworn on 13 th July 2026 and further affidavit sworn on 24 th July 2026 on her own behalf and that of the 2 nd and 4 th Respondents Fartun Mohammed Musa and Augustine Ndegwa respectively.
29. She deposes that in the orders issued by the court on 14 th September, 2023, none of them is capable of being implemented by the 2 nd , 4 th and 6 th Respondents and so they cannot be held to be in contempt of court.
30. She deposes further that the High Court in Milimani HC Constitutional Petition no E369 of 2024 has, by the orders it has given, treated the application dated the 22 nd of May, 2026 as urgent. That the applicant has failed to disclose to this court that the application dated the 22 nd of May, 2026 was coming up for hearing on the 17 th of July, 2026 and therefore the present application is clearly intended to pre-empt the pending stay application dated the 22 nd of May, 2026 and is therefore an abuse of court process.
31. In its response to the application herein, IEBC deposes through CS Chrispine Owiye, its Director of Legal Services that the applicant herein Mary Charles Kalinga is not eligible for nomination as per this court’s decision. That is fine and nobody has asked the IEBC to act that way. This court pointed out that issue from the beginning of the ruling and so it is a non-issue. The issue is carrying into effect this court’s order of 14 th September 2023 as framed by the court and not as interpreted by the applicant. Therefore, the depositions in the said affidavit in paragraphs 13 to 17 of the affidavit are irrelevant. The deponent has properly indicated in the subsequent paragraphs what it is expected to do under section 37 of the Elections Act. The question is, has it done so and if not why not.
32. The IEBC deposes that it has been unable to do so due to subsisting orders emanating from Mombasa Employment and Labour Relations Court ELRCPET/E002/2026 Mulki Abdullahi Adan v. County Assembly of Kwale and 2 others and ELRCPET/E013/2026 Josephine Wairimu Kinyanjui v County Assembly of Kwale and 2 others.
33. The application was disposed of by way of written submissions filed by learned counsels for the parties. The submissions are largely on whether or not the applicant has satisfied the requirements for finding the respondents and Interested Parties in contempt of court. This court exhaustively dealt with those requirements in the partial ruling delivered on 9 th March 2026. Whatever else raised by learned counsels is considered in the analysis that follows. However, some issues such as those raised by the applicant on her being gazetted as the nominated Member of Kwale County Assembly and following thereon by the 1 st Respondent (IEBC) on whether the applicant, having been nominated solely under the PAA Gender Top-Up List, can invoke this Court's contempt jurisdiction to compel her gazettement under the distinct and closed PAA Marginalized List and whether the proper procedure for the replacement or reallocation of nominees under Section 37 of the Elections Act has been invoked are not relevant to this application as they delve into issues that are not for this court’s determination.
34. I have considered the application, the response thereto and the submissions by learned counsels. The issue for determination is whether the applicant has satisfied the requirements for contempt of court.
35. In the partial ruling dated 9 th March 2026, this court dealt with what the applicant needed to establish against the respondents and the Interested Parties and now the Contemnors in order for the court to find that they were in contempt of the court’s orders dated 14 th September 2023. I need not repeat them here.
36. It is common ground that this court issued orders on 14 th September 2023 which nullified the election by way of nomination of the 2 nd to 5 th and 11 th Respondents as per the application dated 5 th December 2024 but now cited as the 2 nd to 6 th Respondents in the application dated 23 rd June 2026, to the County Assembly of Kwale. It is als
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IN THE HIGH COURT OF KENYA AT KWALE
CIVIL APPEAL NO. E010 OF 2025
(Coram: Andayi W. F., J.)
MARY CHARLES KALINGA......................................................APPELLANT/APPLICANT
VERSUS
1. INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION .......................................................1 ST RESPONDENT
2. FARTUN MOHAMMED MUSA....................................................2 ND RESPONDENT
3. JOSEPHINE WAIRIMU KINYANJUI...........................................3 RD RESPONDENT
4. AUGUSTINE NDEGWA...................................................................4 TH RESPONDENT
5. MULKI ABDULLAHI ADAN..........................................................5 TH RESPONDENT
6. KHADIJA NGALA..............................................................................6 TH RESPONDENT
7. MELDTER I. NYAKITI.....................................................................7 TH RESPONDENT
8. KENGO JUDY CHIZI.........................................................................8 TH RESPONDENT
9. RUWA ELIZABETH MWANGOLA..............................................9 TH RESPONDENT
10. TERESIA B. MUOKI......................................................................10 TH RESPONDENT
11. RACHEL KATUMBI MUTISYA..................................................10 TH RESPONDENT
AND
THE COUNTY ASSEMBLY OF KWALE ...................................1 ST INTERESTED PARTY
THE SPEAKER COUNTY ASSEMBLY OF KWALE ............. 2 ND INTERESTED PARTY
THE CLERK COUNTY ASSEMBLY OF KWALE ...................3 RD INTERESTED PARTY
IN THE MATTER OF CONTEMPT OF COURT PROCEEDINGS AGAINST:
MARJAN HUSSEIN MARJAN, SETH MWATELA KAMANZA, FATUMA HASSAN MWALUPA, FARTUN МОНАМED MUSA, JOSEPHINE WAIRIMU KINYANJUI, AUGUSTINE NDEGWA, MULKI ABDULLAHI ADAN AND RACHAEL KATUMBI MUTISYA
RULING
1. This ruling relates to two applications. It concludes the first application dated 5 th December 2024 and also determines the application dated 23 rd June 2026 by the same applicant. The applications are basically the same as will be seen shortly.
2. This matter arose from an election petition filed in the Magistrates’ Court by the appellant/applicant herein. The election petition was dismissed by the trial court and the appellant, dissatisfied with that decision appealed to this court. On 14 th September 2023 this court, Hon. Mr. Justice Magare Dennis Kizito Ngwono allowed the appeal and set aside the judgment of the trial court to a large extent and substituted it with orders inter alia as are relevant to the present application that:
i. A declaration that Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya, the 2 nd , 3 rd , 4 th , 5 th and 11 th respondents herein were not validly elected as nominated members of the County Assembly of Kwale and as such declared the said seats as vacant,
ii. Certificates under section 86 of the Elections Act to issue accordingly.
iii. The 1 st respondent, IEBC to choose from the qualifying lists provided by the parties in the proportions of the votes garnered by prioritizing under the marginalized groups as provided in section 36 of the Elections Act.
iv. The IEBC to conclude nominations to fill the vacant seats within 14 days.
v. None of the candidates found to have been invalidly elected are eligible for re-election.
vi. The Clerk to the County Assembly of Kwale to ensure the newly nominated persons were sworn on the nearest Tuesday within 7 days of appointment;
3. Further appeals by the respondents to the Court of Appeal and Supreme Court were dismissed. The Court of Appeal decision was made on 22 nd March 2024 while the Supreme Court decision was rendered on 28 th June 2024.
4. The 5 th respondent filed a constitutional petition in Kwale High Court Constitutional and Human Rights Petition No. E003 of 2024 Mulki Abdullahi Adan vs Independent Electoral and Boundaries Commission and Speaker, County Government of Kwale, alleging breaches of her fundamental rights under the constitution. The penultimate prayer in the constitutional petition was that this court grants a declaration that the petitioner (5 th respondent herein) is a duly nominated member of the County Assembly of Kwale under Article 177 of the constitution and a mandatory order of injunction be issued directing the IEBC and the Speaker of the County Assembly of Kwale to accept, uphold and allow the petitioner’s nomination as a member of the County Assembly of Kwale and the right to participate in all the proceedings of the Assembly.
5. Alongside the petition she filed an application dated 8 th July 2024 praying for an interim conservatory order of injunction restraining her de-gazettement as the duly nominated member of the County Assembly of Kwale by United Democratic Movement (UDM) party and the 2 nd respondent from swearing any new nominated member by UDM. Interim conservatory orders of injunction were granted on 16 th September 2024 in the terms sought meaning that implementation of the judgment of this court dated 14 th September 2023 was halted and the 5 th respondent herein continued to serve as an elected nominated member of the County Assembly of Kwale. The constitutional petition by the 5 th respondent was subsequently struck out on 22 nd January 2026.
6. The appellant herein filed the Notice of Motion dated 5 th December 2024 seeking the following orders:
i. A prohibitive injunction/freezing order do issue forthwith against the County Assembly of Kwale staying and freezing payment of salaries, remuneration, allowances, perks and benefits to the 2 nd 3 rd , 4 th , 5 th , and 11 th respondents from the date of filing this application until the hearing and determination of the appellant's/applicant's application.
ii. a prohibitive injunction does issue forthwith barring and prohibiting the 2 nd , 3 rd , 4 th , 5 th , and 11 th respondents from attending the County Assembly of Kwale House and Committee sittings and events and conducting/transacting any business of the Kwale County Assembly whether official or otherwise.
iii. leave be granted to the appellant/applicant to institute contempt of Court proceedings against the 1 st , 2 nd , 3 rd , 4 th , 5 th and 11 th respondents and the 1 st Interested Party, 2 nd Interested Party and 3 rd Interested Party namely Marjan Hussein Marjan, Seth Mwatela Kamanza and Fatuma Hassan Mwalupa and the 2 nd , 3 rd , 4 th , 5 th , and 11 th respondents and the Kwale County Assembly respectively.
iv. the Court issues warrants of arrest and commit Marjan Hussein Marjan, Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachael Katumbi Mutisya to prison for their willful and contemptuous disobedience of lawful and valid Court Orders issued on 14 th September 2023 and their continued unlawful actions and omissions in disobedience of the orders.
7. This court upon considering the application exhaustively delivered a partial ruling on that, ending with the following remarks and orders:
“At this point, I find that it will be remiss of this court to proceed with the determination of this application when information has been brought to its attention by learned counsels, including learned counsel for the applicant, as officers of this court, that there could be orders staying proceedings in this matter. It is only fair that this court gets sight of those orders in order to appreciate their full purport and tenure before proceeding further. For instance, this court has found that the orders in Kwale CHR Petition No. E003 of 2024 affected the 5 th respondent. That means that R1, R2, R3, R4 and R11 could not claim to enjoy the protection of those orders.
Contempt of court proceedings are meant to ensure that the dignity of the court is preserved through observance of its orders but more fundamentally that the rule of law is upheld all the time (see the case of Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another Civil Application No.39 of 1990 as reported in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) . That is why it is quasi criminal in nature and the standard of proof is higher than in ordinary civil proceedings of a balance of probability but lower than beyond .
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] KEHC 9233 (KLR) it was held that the breach complained of has to be both deliberate and mala fide .
The respondents who have appeared herein and the Interested Parties have raised the issue of there being a court order affecting the proceedings herein to the extent that they could not even respond thereto. Since the respondents failed to make available to this court the said conservatory orders this court now directs its Deputy Registrar (DR) to liaise with the DR Milimani Constitutional and HR division to assist in accessing the proceedings and/or orders, rulings and/or judgment in Nairobi HC, Milimani CHR Petition No. 329 of 2024 ( this should have been E369 of 2025) after which this court will issue further directions on the ruling in the present application.
8. This court has now received and read the judgment of the High Court at Milimani in Munga & 3 others v Independent Electoral and Boundaries Commission & 6 others [2026] KEHC 6904 (KLR) delivered on 29 th April 2026 wherein the court dismissed both the petition and cross-petition and vacated conservatory orders issued earlier on 15 th August 2024 which preserved the status quo thereby enabling the 2 nd to 6 th respondents to continue holding office as Members of County Assembly of Kwale elected by way of nomination.
9. In its said judgment the High Court stated that:
“At its core, the Petition challenges the legality and constitutionality of a prior decision of the High Court sitting in its election appellate jurisdiction in Mombasa High Court Election Petition Appeal No. E087 of 2023, which nullified the Petitioners’ nomination as Members of the County Assembly of Kwale on the basis of alleged ineligibility relating to residency and voter registration requirements. The Petitioners contend that the said decision was erroneous in law, constitutionally infirm, and has precipitated imminent actions including their degazettment and removal from office.”
10. The said judgment therefore confirmed that there were conservatory order issued maintain the status quo. It is important to note that the conservatory orders in that petition were issued by consent of the parties and continued to subsist until the court rendered its judgment on 29 th April 2026.
11. It was thus imperative that this court gets to know the extent of those conservatory orders as had been alluded to by learned counsels before concluding on the ruling in the application for contempt by the applicant dated 5 th December 2024. In view of the said conservatory orders, it follows that the 1 st , 2 nd to 5 th and 11 th respondents namely IEBC, Fartun Mohamed Musa, Josephine Wairimu Kinyanjui, Augustine Ndegwa, Mulki Abdullahi Adan and Rachel Katumbi Mutisya respectively cannot be held to have deliberately and through mala fides failed to obey this court’s orders issued on 14 th September 2023. In fact, even as the applicant herein was filing the application dated 5 th December 2024 she was well aware of the conservatory orders of which she had acquiesced.
12. Subsequent to this court’s partial ruling herein delivered on 9 th March 2026 and the delivery of the judgment in the Nairobi petition on 29 th April 2026 the applicant filed a fresh notice of motion application dated 23 rd June 2026 with the parties as in the application of 5 th December 2024 but has now added the following tile and parties:
IN THE MATTER OF CONTINUED BREACH, VIOLATION AND CONTEMPT OF COURT ORDERS ISUED ON 14 TH SEPTEMBER 2023 BY HON. JUSTICE KIZITO MAGARE ORDERING THE 2 ND TO 6 TH RESPONDENTS TO VACATE OFFICE AND FOR THE SPEAKER KWALE COUNTY ASSEMBLY TO DECLARE VACANCIES AND SWEAR IN THE IEBC GAZETTED NOMINEES INCLUDING THE APPELLANT AND FOUR (4) OTHER NEW NOMINEES AS NOMINATED MCAS, KWALE COUNTY ASSEMBLY.
IN THE MATTER OF CONTINUED BREACH, VIOLATION AND CONTEMPT OF COURT ORDERS ISSUED ON 14 TH SEPTEMBER 2023 CONDEMNING THE IEBC TO PAY KES. 500,000/= TO THE APPELLANT BEING COSTS OF THE ELECTION PETITION
AND
IN THE MATTER OF CONTEMPT OF COURT PROCEEDINGS AGAINST: -
1. THE SPEAKER KWALE COUNTY ASSEMBLY_
HON. SETH MWATELA KAMANZA ..............................1 ST CONTEMNOR
2. THE CLERK &LEGAL ADVISOR KWALE COUNTY ASSEMBLY_ FATUMA HASSAN MWALUPA ……....………………… 2 ND CONTEMNOR
3. THE IEBC ACCOUNTING OFFICER,
MOSES LEDAMA SUNKULI………………………………3 RD CONTEMNOR
4. THE IEBC ELECTIONS MANAGER KWALE COUNTY_
AMINA HUSSEIN SOUD………………………..…………4 TH CONTEMNOR
5. THE IEBC FINANCE DIRECTOR_
RUEBEN C. KIPROTICH …. ............................................5 TH CONTEMNOR
6. FARTUN MOHAMMED MUSA ……………..……………6 TH CONTEMNOR
7. JOSEPHINE WAIRIMU KINYANJUI …………………..7 TH CONTEMNOR
8. AUGUSTINE NDEGWA ……………………………………8 TH CONTEMNOR
9. MULKI ABDULLAHI ADAN ……………………………...9 TH CONTEMNOR
10. RACHEL KATUMBI MUTISYA …………………….....10 TH CONTEMNOR
13. By the said motion the applicant seeks the following orders:
i. The court to issue Notices to Show Cause and Summons to attend court at the earliest to the contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya to show cause why they should not be cited for their disobedience and contempt of lawful court orders issued on 14 th September 2023 by Hon. Justice Dennis Kizito Magare.
ii. In default or on the contemnors’ refusal, failure and neglect to physically attend court to honour the notices to show cause and summons to attend court as prayed for hereinabove and ordered by Court, the Court be pleased to forthwith issue warrants of arrest as against Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya who are al based in Kwale and the warrants of arrest to be informed by the OCS Kwale Police Station in conjunction with the OCPD Kwale County and Kwale County Regional Police Commander Reginald Omaria Omukaga.
iii. The warrants of arrest against Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Abdullahi Adan and Rachel Katumbi Mutisya be executed and enforced by the Officer Commanding Station (OCS) Kwale Police Station in conjunction with the OCPD Kwale County while the warrants of arrest against Moses Ledama Sunkuli and Reuben C. Kiprotich who are IEBC Officers based in Nairobi be enforced by the OCS Central Police Station Nairobi Dishon Angoya in Conjunction with the Nairobi Regional Police Commander Issa Mohamud.
iv. In case of refusal, failure and neglect to enforce the warrants of arrest against the named contemnors within the strict court stipulated timelines, the court issues Summons to attend Court and Notice to show cause to the OCS Kwale Police, the OCPD Kwale County, Kwale County Regional Police Commander Reginald Omaria Omukaga, OCS Central Police Station Nairobi Dishon Angoya and the Nairobi Regional Police Commander Issa Mohamud.
v. The court to cite and find the Contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya to be in contempt of court orders for blatantly violating and disobeying this court’s orders issued by Hon. Dennis Kizito Magare on 14 th September 2023.
vi. The court to sanction and commit to civil jail for six (6) months and issue other appropriate penalties, sanctions and sentences to the contemnors namely Seth Mwatela Kamanza, Fatuma Hassan Mwalupa, Moses Ledama Sunkuli, Amina Hussein Soud, Reuben C. Kiprotich, Abdullahi Adan and Rachel Katumbi Mutisya for willfully and blatantly disobeying the court’s orders dated 14 th September 2023.
vii. The court to order the Speaker and Clerk Kwale County Assembly respectively together with IEBC to immediately declare vacancies in the office of five (5) nominated members of Kwale County Assembly whose election was nullified and proceed to gazette and within 7 days thereof swear in Mary Charles Kalinga(PAA Party) Mwanauba Omar Mwaphatsa (ODM Party), Bakari Mwafrika Mwakilesho (ODM Party) Luvuno Zawadi Jackson(PAA Party) and 1 other suitable and qualified person from UDA as the new nominated MCAS Kwale County Assembly.
viii. The court to order the 2 nd to 6 th Respondents to jointly and severally reimburse the Appellant/Applicant loss of monthly salary earnings for the period between 14 th September 2023 until the date of her gazettement as an MCA or until the date of the Ruling on this application based on the average gross monthly pay of an elected MCA of KShs. 150,944.30.
ix. The contemnors be ordered to jointly and severally pay the costs of this application to the Appellant/Applicant within thirty (30) days of determination of this application.
14. The grounds in support of the application as set out on the face thereof and expounded in the affidavit of Mary Charles Kalinga sworn on 23 rd June 2026. Besides repeating most of the issues which are well within this court’s knowledge as they are on record, most of the grounds are a repetition of the grounds in the earlier application dated 5 th December 2024. The applicant’s main contention is that the 2 nd to 5 th and 11 th Respondent’s election by way of nomination to the County Assembly of Kwale having been nullified by the court on 14 th September 2023 they continue to occupy office unlawfully with the countenance and permission of the Speaker and Clerk of the County Assembly of Kwale together with the IEBC who have refused to declare and gazette vacancies in the said offices despite numerous reminders.
15. It is the applicant’s further contention that upon declaration and gazettment of vacancies for the said offices, as per the court’s orders, she not only qualifies but should be gazette to one of those positions alongside others namely Mwanauba Omar Mwaphatsa, Bakari Mwafrika Wakilesho, Zawadi Jackson Luvuno and one further person as will be determined by the IEBC.
16. She deposes further that from 14 th September 2023 to July 2024, the respondents were not ejoying any conservatory orders that would have prevented them from complying with the court’s orders issued on 14 th September 2023
17. Some of those grounds can be termed outrageous because they do not arise from the judgment of this court dated 14 th September 2023 yet the applicant asserts that the court made such orders and the application seeks to cite the respondents and alleged contemnors for failing to implement the court’s orders. Such grounds cannot be found to be in support of the application for contempt. Consequently, the orders sought based on those grounds that the applicant Mary Charles Kalinga, Mwanauba Omar Mwaphatsa, Bakari Mwafrika Mwakilesho and Luvuno Zawadi Jackson be gazetted to fill the vacancies arising from the court’s judgment and that they be paid the sums that have since been paid to the 2 nd to 6 th Respondents cannot be granted and are declined.
18. The 1 st Interested Party and 2 nd Interested Party, the County Assembly of Kwale and the Speaker of the County Assembly of Kwale respectively filed a common replying affidavit, through Seth Mwatela Kamanza, the Speaker of the County Assembly of Kwale sworn, on 28 th November 2025 in response to the application dated 5 th December 2024. He deposes that they could not have been brought into the proceedings as interested parties without the applicant first seeking leave of the court and without demonstrating that the two have a personal and identifiable interest and stake in the matter and therefore proper and necessary parties to the proceedings. Unfortunately, the parties rely on the definition of Interested Party defined under the provisions of Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Mutunga Rules”) when the application herein is not a constitutional petition but arises from an election petition appeal.
19. Further that the application fails to satisfy the procedure for instituting contempt of court proceedings and is therefore incompetent.
20. He deposes further that at the time the present application was filed by the appellant, there were existing conservatory orders issued on 16 th July 2024 by the High Court at Kwale in Constitutional Petition No. E003 of 2024; Mulki Abdullahi Adan v IEBC & Speaker County Assembly of Kwale and Mary Charles Kalinga , and further on 31 st July 2024 by the High Court at Milimani in Constitutional Petition No. E369 of 2024; Augustine Ndegwa & Others v IEBC & Speaker County Assembly of Kwale & Others , staying the implementation of the same judgment sought to be enforced herein by the appellant, who was also a party to the said petitions. He deposes further that following those orders the Interested Parties could not take any action in line with the judgment of this court delivered on 14 th September 2023 until those orders were lifted and so the application for contempt of court has no basis.
21. He deposes further that none of the Interested Parties herein were parties to the Election Petition Appeal, and the orders issued by the Election Court therein were directed primarily to the IEBC for implementation in accordance with its mandate under the provisions of Article 88(4)(d) of the Constitution, as read together with section 4(d) of the IEBC Act 2011, and sections 27, 31, 34, 36, and 37 of the Elections Act 2011 and therefore cannot be held liable for any alleged inaction concerning implementation of the said judgment.
22. The 1 st and 2 nd Interested Parties therefore state that the applicant has failed to demonstrate by evidence that the Interested Parties have acted wilfully, deliberately, or with mala fides to disobey any court order.
23. Seth Mwatela Kamanza, the Speaker of the County Assembly of Kwale the 2 nd IP who has now been cited personally as the 1 st Contemnor filed his replying affidavit sworn on 9 th July 2026 to the application dated 23 rd June 2026.
24. He basically repeats the depositions in the earlier affidavit and further that they have acted in good faith, and not out of any intention to disobey the court order or to undermine the authority of the court as there have been orders from courts staying implementation of this court’s orders.
25. He deposes further that the application does not meet the threshold for contempt of court proceedings especially since the applicant has not demonstrated that the IPs had knowledge and ability to comply with the court orders but deliberately failed to do so of the court orders the subject of these proceedings.
26. Fatuma Hassan Mwalupa, the Clerk of the County Assembly of Kwale, the 3 rd IP and 2 nd alleged contemnor filed a replying affidavit sworn on 8 th July 2026. It bears the same contents as that of the Speaker of the County Assembly.
27. Josephine Kinyanjui, the 3 rd Respondent and alleged 7 th Contemnor filed a replying affidavit sworn on 29 th July 2026. She deposes that:
a. There is no sufficient evidence adduced by the applicant to support the grant of the orders sought and the application does not meet the threshold for contempt application and committal to civil jail, which is higher than proof on a balance of probabilities, though not as high proof beyond reasonable doubt.
b. She denies that she has by acts of omission or commission denied the Applicant enjoyment of the fruits of judgement. Further that it is a mischaracterization of the applicant to deem herself as a successful decree-holder.
c. She deposes that she was shortlisted and nominated under the marginalized group while the Applicant was nominated in the Gender special seat nominee (for gender top up) which are different and distinct in law which distinction is pursuant to provisions of Article 177 (1) (c) of the constitution wherein she was nominated and Article 177 (1) (b) wherein the Applicant was nominated.
d. That should either of the said seats fall vacant the provisions of Section 36 of the Elections Act kick in wherein the order in priority of the nominees is followed. It is worth noting that while following the next in line rule, regard must be made not to offend the two third constitutional imperative.
e. Further that Party-list nominations do not operate on the basis of direct substitution by judicial fiat, rather, they are governed by party lists and processes subject to constitutional and statutory oversight. The Applicant cannot hide under contempt proceedings to circumvent constitutional and statutory oversight.
f. That she was in the courts seeking of legal redress consequent to the judgment dated 14 th September 2023 as she exercised her right to seek redress in the superior courts in what she believed was a legitimate cause of action.
g. Therefore, she remains a law-abiding citizen and she is not aware of any gazette notice or letter from the 1 st Respondent that has declared her seat vacant. To this end, she has continued to execute her mandate as a nominated Member of County Assembly in accordance with the law.
28. Rachael Katumbi Mutisya, the 6 th Respondent and 10 th alleged contemnor also opposed the application by way of a replying affidavit sworn on 13 th July 2026 and further affidavit sworn on 24 th July 2026 on her own behalf and that of the 2 nd and 4 th Respondents Fartun Mohammed Musa and Augustine Ndegwa respectively.
29. She deposes that in the orders issued by the court on 14 th September, 2023, none of them is capable of being implemented by the 2 nd , 4 th and 6 th Respondents and so they cannot be held to be in contempt of court.
30. She deposes further that the High Court in Milimani HC Constitutional Petition no E369 of 2024 has, by the orders it has given, treated the application dated the 22 nd of May, 2026 as urgent. That the applicant has failed to disclose to this court that the application dated the 22 nd of May, 2026 was coming up for hearing on the 17 th of July, 2026 and therefore the present application is clearly intended to pre-empt the pending stay application dated the 22 nd of May, 2026 and is therefore an abuse of court process.
31. In its response to the application herein, IEBC deposes through CS Chrispine Owiye, its Director of Legal Services that the applicant herein Mary Charles Kalinga is not eligible for nomination as per this court’s decision. That is fine and nobody has asked the IEBC to act that way. This court pointed out that issue from the beginning of the ruling and so it is a non-issue. The issue is carrying into effect this court’s order of 14 th September 2023 as framed by the court and not as interpreted by the applicant. Therefore, the depositions in the said affidavit in paragraphs 13 to 17 of the affidavit are irrelevant. The deponent has properly indicated in the subsequent paragraphs what it is expected to do under section 37 of the Elections Act. The question is, has it done so and if not why not.
32. The IEBC deposes that it has been unable to do so due to subsisting orders emanating from Mombasa Employment and Labour Relations Court ELRCPET/E002/2026 Mulki Abdullahi Adan v. County Assembly of Kwale and 2 others and ELRCPET/E013/2026 Josephine Wairimu Kinyanjui v County Assembly of Kwale and 2 others.
33. The application was disposed of by way of written submissions filed by learned counsels for the parties. The submissions are largely on whether or not the applicant has satisfied the requirements for finding the respondents and Interested Parties in contempt of court. This court exhaustively dealt with those requirements in the partial ruling delivered on 9 th March 2026. Whatever else raised by learned counsels is considered in the analysis that follows. However, some issues such as those raised by the applicant on her being gazetted as the nominated Member of Kwale County Assembly and following thereon by the 1 st Respondent (IEBC) on whether the applicant, having been nominated solely under the PAA Gender Top-Up List, can invoke this Court's contempt jurisdiction to compel her gazettement under the distinct and closed PAA Marginalized List and whether the proper procedure for the replacement or reallocation of nominees under Section 37 of the Elections Act has been invoked are not relevant to this application as they delve into issues that are not for this court’s determination.
34. I have considered the application, the response thereto and the submissions by learned counsels. The issue for determination is whether the applicant has satisfied the requirements for contempt of court.
35. In the partial ruling dated 9 th March 2026, this court dealt with what the applicant needed to establish against the respondents and the Interested Parties and now the Contemnors in order for the court to find that they were in contempt of the court’s orders dated 14 th September 2023. I need not repeat them here.
36. It is common ground that this court issued orders on 14 th September 2023 which nullified the election by way of nomination of the 2 nd to 5 th and 11 th Respondents as per the application dated 5 th December 2024 but now cited as the 2 nd to 6 th Respondents in the application dated 23 rd June 2026, to the County Assembly of Kwale. It is als
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