Introduction
1. Contempt proceedings invoke the Court’s coercive and penal jurisdiction, and for that reason they demand a standard of proof that is markedly higher than that required in ordinary civil claims. Because a finding of contempt carries serious consequences, the Court must be satisfied that each essential element including service or knowledge of the order, breach, and wilfulness has been established through evidence that is clear, consistent, and unequivocal. Nothing short of strict and compelling proof will suffice.
2. This ruling concerns the Applicant’s Notice of Motion dated 08th May 2025, brought pursuant to Section 5 of the Judicature Act, Section 29 of the Contempt of Court Act (to the extent operational), and the inherent jurisdiction of this Court, seeking orders to cite and commit the Respondents for alleged contempt of tribunal orders said to have been issued on 31st October 2024 and 24th February 2025. The Motion is supported by the Applicant’s Supporting Affidavit sworn on 8th May 2025. It is opposed through the Replying Affidavit of John Misoi (5th Respondent) sworn on 11th July 2025, and the Replying Affidavit of Joshua Kiraithe, OCS Keroka Police Station, sworn on behalf of the 1st, 6th, 7th and 8th Respondents.
3. The Applicant seeks:
1) An order citing the Respondents for contempt of court for alleged disobedience of tribunal orders.
2) Committal of the Respondents to civil jail.
3) Permission for the Applicant to remain on the disputed premises and reimbursement for alleged destroyed property.
4) Further orders as the Court may deem just.
5) Costs.
Background
4. The Applicant’s case, as presented in her Supporting Affidavit sworn on 08th May 2025, is that she was the beneficiary of what she describes as tribunal orders issued on 31st October 2024 and 24th February 2025, which allegedly protected her occupation and quiet possession of certain business premises and associated property. She avers that, notwithstanding the existence of those orders, the Respondents engaged in a series of actions which, in her view, constituted blatant disobedience of lawful judicial directives. She asserts that the Respondents descended upon the premises, forcibly locked the same, denied her access thereto, and caused destruction or removal of her belongings, thereby rendering nugatory the protection purportedly afforded by the tribunal orders. According to her, these actions were not isolated incidents but formed part of a sustained and coordinated effort to undermine and defeat the authority of the tribunal.
5. In his replying affidavit, the 5th Respondent, John Misoi, describes himself as the Chairman of the Omotembe Amabati Women’s Group, which he asserts is the entity that owns or manages the premises at the centre of the dispute. He denies any knowledge of the tribunal proceedings relied upon by the Applicant and deposes that he was never served with any tribunal order. He maintains that the Applicant has misrepresented the ownership of the premises and that the dispute is purely a tenancy disagreement between her and the women’s group he chairs. He further states that the Applicant forcibly occupied rooms belonging to the group and that an altercation between them resulted in criminal proceedings at Keroka, thereby demonstrating, in his view, that no question of wilful disobedience of a court order arises.
6. The position of the 1st, 6th, 7th and 8th Respondents is articulated in the Replying Affidavit of the 6th Respondent, Joshua Kiraithe, the OCS Keroka Police Station. He similarly denies service or knowledge of the alleged orders and asserts that the document relied upon by the Applicant neither bears a court seal, nor bears a judicial stamp, nor reflects any form of acknowledgment or endorsement by the police.
7. In particular, the OCS avers that officer at Keroka Police Station handled the Applicant’s various complaints strictly in accordance with their statutory obligations. He explains that the Applicant’s reports were duly received and recorded in the Occurrence Book; that she was issued with a P3 form to facilitate medical examination where she alleged assault; that, in instances involving monetary disputes, the police facilitated refunds where appropriate; that inquiry files were opened and processed to assess the substance of her allegations; and that, upon evaluating the evidence available, the police ultimately preferred criminal charges against the 5th Respondent for assault. He contends that these steps, taken cumulatively, demonstrate lawful and responsive policing rather than defiance of any judicial directive.
8. The OCS states that these steps demonstrate adherence to lawful procedures rather than any form of defiance. He contends that the police could not possibly comply with an order of which they had no knowledge, and which, in any event, appears not to have met the fundamental requirements of a judicial order capable of enforcement, including authentication, clarity, and service.
9. Overall, the Respondents’ collective position is that the Applicant is attempting to invoke the coercive and penal jurisdiction of this Court in circumstances where the essential factual and legal predicates of contempt namely, existence of a valid order, its proper service, knowledge, and subsequent wilful disobedience have not been established. They argue that the Motion amounts to an improper attempt to convert administrative and tenancy grievances into contempt proceedings, contrary to the law governing such applications.
Issues for determination
10. Upon considering the Notice of Motion dated 08th May 2025, the Supporting Affidavit, the Replying Affidavits filed in opposition, and the respective written submissions of the parties, the Court is of the view that the following issues arise for determination:
1) Whether the application for contempt is properly before this Court.
2) Whether the Respondents were served with or were aware of the alleged tribunal orders.
3) Whether the Respondents wilfully disobeyed a lawful court order.
4) Whether the legal threshold for contempt has been met.
5) What orders ought to issue.
1) Competence of the Application
11. The Respondents assail the competence of the Motion on the basis that the Applicant neither sought nor obtained leave prior to commencing contempt proceedings. They rely on Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, where the Court of Appeal reaffirmed the requirement for leave as a prerequisite to instituting substantive contempt proceedings. It is manifest that the Applicant did not comply with that requirement, rendering the Motion procedurally infirm.
12. Even so, and in keeping with the overriding objective entrenched in Sections 1A and 1B of the Civil Procedure Act, which enjoins courts to facilitate the just, expeditious, proportionate, and affordable resolution of disputes, the Court considers it appropriate to address the remaining issues. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasised that procedural technicalities should not be allowed to impede the administration of substantive justice, while the Court of Appeal in Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR affirmed that the oxygen principles require courts to take a pragmatic approach and determine matters on their merits where circumstances permit. Guided by these principles, the Court shall proceed to consider the substantive issues raised by the Applicant.
2) Whether the Respondents were served with or aware of the alleged orders
13. The Applicant placed before the Court a copy of a tribunal order issued in Rent Restriction Case No. 088 of 2024. Although the Respondents challenged the authenticity of the order, the Court examined the document and is satisfied, from its form, features and contents, that it is a genuine order of the Tribunal.
14. The Respondents deny service. The 6th Respondent deponed on his own behalf and on behalf of the 1st, 7th and 8th Respondents, stating that no tribunal order was ever served upon or brought to the attention of any of them, and that their engagement with the Applicant was confined to the ordinary processing of her complaints in the normal course of duty. The 5th Respondent similarly denies having been served.
15. In support of her assertion that the tribunal order was served, the Applicant relied on an affidavit of service sworn on 18th February 2025 by Joseph Mogaka Moemi, a licensed court process server. In that affidavit, the process server depones that on 18th February 2025 and again on 18th April 2025, he attended the landlord’s residence and Keroka Police Station, where he served persons described as the “landlord,” the “O.C.S.” and the “O.C.P.D.” with copies of the tribunal order and a hearing notice. He indicates the dates, approximate times and places of service and states that the persons served accepted the documents but declined to acknowledge service by signing.
16. A perusal of the affidavit of service does not disclose how the process server identified the individuals he alleges to have been the landlord, the OCS and the OCPD. The affidavit does not state whether the alleged recipients identified themselves, whether the process server knew them beforehand, or whether they were pointed out to him by any third party. No names, badge numbers, service numbers, ranks or physical descriptions are provided, leaving the identity of the alleged recipients wholly unparticularised.
17. Further, although the 2nd, 3rd and 4th Respondents did not participate in these proceedings, there is no evidence on record demonstrating that they were ever served with, or otherwise became aware of, the tribunal order relied upon by the Applicant.
18. The authorities cited by the parties underscore the strict standard applicable in contempt proceedings. In Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & Another [2005] eKLR and Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR, the Courts emphasised that contempt, being quasi-criminal in nature, requires strict proof not only of the existence of a valid order but also of service of, or knowledge of, that order. Similarly, in Republic v Principal Secretary, Ministry of Defence & Another Ex parte George Kariuki Waithaka [2019] eKLR, the Court reiterated that knowledge of a court order must be demonstrated through clear, cogent and credible evidence.
19. In the circumstances, having regard to the unchallenged denials by the 6th Respondent (on his own behalf and on behalf of the 1st, 7th and 8th Respondents), the denial by the 5th Respondent, the deficiencies in the affidavit of service, and the absence of any evidence showing that the 2nd, 3rd and 4th Respondents were notified of the tribunal order, the Court is not satisfied that service or knowledge has been established to the standard required in contempt proceedings. In contempt proceedings, the mere reference to an office or title, without identifying the specific individual alleged to have been served particularly where service is not acknowledged cannot amount to proof of service. The Applicant has therefore failed to prove that any of the Respondents were aware of the terms of the tribunal order she seeks to enforce.
3) Whether the Respondents wilfully disobeyed a lawful order
13. The Applicant alleges that the Respondents demolished her structures, destroyed her belongings, and evicted her in disregard of the tribunal order she relies upon. However, contempt cannot arise in the abstract. It requires not only the existence of a valid order but proof that the alleged contemnors were aware of it. Without proof of service or knowledge, no act, however objectionable, can amount to wilful disobedience.
14. The Applicant cited Republic v Attorney General & Another Ex parte Mike Maina Kamau [2019] eKLR, a decision affirming that once a party has been served with a court order, obedience is mandatory irrespective of personal disagreement with its terms. That authority, however, rests on a factual foundation wholly absent in the present case, as the contemnors in Mike Maina were indisputably served. The Applicant also relied on the classical authority of Hadkinson v Hadkinson [1952] 2 All ER 567, which reiterates the principle that court orders must be obeyed as a matter of obligation, though that authority likewise presupposes the existence of a valid, clear, and duly communicated order.
15. The Respondents have given a different account of events. The 1st, 5th, 6th and 7th Respondents elaborate that they received and processed the Applicant’s complaints in accordance with their statutory mandate, receiving her reports, issuing her with a P3 form, opening inquiry files, facilitating refunds in appropriate circumstances, and ultimately charging the 5th Respondent with assault where the evidence warranted prosecution. These steps, viewed objectively, are entirely consistent with administrative policing functions and inconsistent with deliberate defiance of a tribunal directive. The 5th Respondent disputes the Applicant’s factual allegations and denies any intentional wrongdoing.
16. Given the failure to establish service or knowledge, and given the factual contestation surrounding the events themselves, the Court cannot attribute wilful disobedience to the Respondents. A finding of contempt requires a deliberate, informed, and conscious breach of a known obligation. No such basis has been laid in this case.
4) Whether the legal threshold for contempt has been met
17. The elements of civil contempt are well settled. In Cecil Miller v Jackson Njeru & Another [2017] eKLR, the Court identified four essential requirements: the existence of a clear and unambiguous order; knowledge of that order by the alleged contemnor; breach of the terms of the order; and wilful and deliberate disobedience. The same position was reiterated in Getecha v Hydro Developers Ltd (2025) KEELC 721 (KLR), where the Court emphasised that absence of service or knowledge is fatal to contempt proceedings.
18. Applying those principles to the findings already made under issues 2 and 3 above, although a valid tribunal order exists, the Applicant failed to prove that the Respondents were served with, or were otherwise aware of, its terms. In the absence of knowledge, neither breach nor wilful disobedience can be established.
19. The Applicant has therefore not satisfied the legal threshold for contempt as articulated in Cecil Miller v Jackson Njeru & Another (supra) and Getecha v Hydro Developers Ltd (supra). The contempt jurisdiction, being quasi-criminal in nature, is not triggered on the facts of this case.
Disposition
20. Accordingly, the Court makes the following orders:
1) The Notice of Motion dated 08th May 2025 is hereby dismissed.
2) The prayer for the committal of the Respondents for contempt is declined.
3) All ancillary and consequential prayers, including those seeking occupation of the premises, compensation, or any further relief, are dismissed.
4) This file is closed
5) Costs of the application shall be borne by the Applicant.
1. Contempt proceedings invoke the Court’s coercive and penal jurisdiction, and for that reason they demand a standard of proof that is markedly higher than that required in ordinary civil claims. Because a finding of contempt carries serious consequences, the Court must be satisfied that each essential element including service or knowledge of the order, breach, and wilfulness has been established through evidence that is clear, consistent, and unequivocal. Nothing short of strict and compelling proof will suffice.
2. This ruling concerns the Applicant’s Notice of Motion dated 08th May 2025, brought pursuant to Section 5 of the Judicature Act, Section 29 of the Contempt of Court Act (to the extent operational), and the inherent jurisdiction of this Court, seeking orders to cite and commit the Respondents for alleged contempt of tribunal orders said to have been issued on 31st October 2024 and 24th February 2025. The Motion is supported by the Applicant’s Supporting Affidavit sworn on 8th May 2025. It is opposed through the Replying Affidavit of John Misoi (5th Respondent) sworn on 11th July 2025, and the Replying Affidavit of Joshua Kiraithe, OCS Keroka Police Station, sworn on behalf of the 1st, 6th, 7th and 8th Respondents.
3. The Applicant seeks:
1) An order citing the Respondents for contempt of court for alleged disobedience of tribunal orders.
2) Committal of the Respondents to civil jail.
3) Permission for the Applicant to remain on the disputed premises and reimbursement for alleged destroyed property.
4) Further orders as the Court may deem just.
5) Costs.
Background
4. The Applicant’s case, as presented in her Supporting Affidavit sworn on 08th May 2025, is that she was the beneficiary of what she describes as tribunal orders issued on 31st October 2024 and 24th February 2025, which allegedly protected her occupation and quiet possession of certain business premises and associated property. She avers that, notwithstanding the existence of those orders, the Respondents engaged in a series of actions which, in her view, constituted blatant disobedience of lawful judicial directives. She asserts that the Respondents descended upon the premises, forcibly locked the same, denied her access thereto, and caused destruction or removal of her belongings, thereby rendering nugatory the protection purportedly afforded by the tribunal orders. According to her, these actions were not isolated incidents but formed part of a sustained and coordinated effort to undermine and defeat the authority of the tribunal.
5. In his replying affidavit, the 5th Respondent, John Misoi, describes himself as the Chairman of the Omotembe Amabati Women’s Group, which he asserts is the entity that owns or manages the premises at the centre of the dispute. He denies any knowledge of the tribunal proceedings relied upon by the Applicant and deposes that he was never served with any tribunal order. He maintains that the Applicant has misrepresented the ownership of the premises and that the dispute is purely a tenancy disagreement between her and the women’s group he chairs. He further states that the Applicant forcibly occupied rooms belonging to the group and that an altercation between them resulted in criminal proceedings at Keroka, thereby demonstrating, in his view, that no question of wilful disobedience of a court order arises.
6. The position of the 1st, 6th, 7th and 8th Respondents is articulated in the Replying Affidavit of the 6th Respondent, Joshua Kiraithe, the OCS Keroka Police Station. He similarly denies service or knowledge of the alleged orders and asserts that the document relied upon by the Applicant neither bears a court seal, nor bears a judicial stamp, nor reflects any form of acknowledgment or endorsement by the police.
7. In particular, the OCS avers that officer at Keroka Police Station handled the Applicant’s various complaints strictly in accordance with their statutory obligations. He explains that the Applicant’s reports were duly received and recorded in the Occurrence Book; that she was issued with a P3 form to facilitate medical examination where she alleged assault; that, in instances involving monetary disputes, the police facilitated refunds where appropriate; that inquiry files were opened and processed to assess the substance of her allegations; and that, upon evaluating the evidence available, the police ultimately preferred criminal charges against the 5th Respondent for assault. He contends that these steps, taken cumulatively, demonstrate lawful and responsive policing rather than defiance of any judicial directive.
8. The OCS states that these steps demonstrate adherence to lawful procedures rather than any form of defiance. He contends that the police could not possibly comply with an order of which they had no knowledge, and which, in any event, appears not to have met the fundamental requirements of a judicial order capable of enforcement, including authentication, clarity, and service.
9. Overall, the Respondents’ collective position is that the Applicant is attempting to invoke the coercive and penal jurisdiction of this Court in circumstances where the essential factual and legal predicates of contempt namely, existence of a valid order, its proper service, knowledge, and subsequent wilful disobedience have not been established. They argue that the Motion amounts to an improper attempt to convert administrative and tenancy grievances into contempt proceedings, contrary to the law governing such applications.
Issues for determination
10. Upon considering the Notice of Motion dated 08th May 2025, the Supporting Affidavit, the Replying Affidavits filed in opposition, and the respective written submissions of the parties, the Court is of the view that the following issues arise for determination:
1) Whether the application for contempt is properly before this Court.
2) Whether the Respondents were served with or were aware of the alleged tribunal orders.
3) Whether the Respondents wilfully disobeyed a lawful court order.
4) Whether the legal threshold for contempt has been met.
5) What orders ought to issue.
1) Competence of the Application
11. The Respondents assail the competence of the Motion on the basis that the Applicant neither sought nor obtained leave prior to commencing contempt proceedings. They rely on Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, where the Court of Appeal reaffirmed the requirement for leave as a prerequisite to instituting substantive contempt proceedings. It is manifest that the Applicant did not comply with that requirement, rendering the Motion procedurally infirm.
12. Even so, and in keeping with the overriding objective entrenched in Sections 1A and 1B of the Civil Procedure Act, which enjoins courts to facilitate the just, expeditious, proportionate, and affordable resolution of disputes, the Court considers it appropriate to address the remaining issues. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasised that procedural technicalities should not be allowed to impede the administration of substantive justice, while the Court of Appeal in Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR affirmed that the oxygen principles require courts to take a pragmatic approach and determine matters on their merits where circumstances permit. Guided by these principles, the Court shall proceed to consider the substantive issues raised by the Applicant.
2) Whether the Respondents were served with or aware of the alleged orders
13. The Applicant placed before the Court a copy of a tribunal order issued in Rent Restriction Case No. 088 of 2024. Although the Respondents challenged the authenticity of the order, the Court examined the document and is satisfied, from its form, features and contents, that it is a genuine order of the Tribunal.
14. The Respondents deny service. The 6th Respondent deponed on his own behalf and on behalf of the 1st, 7th and 8th Respondents, stating that no tribunal order was ever served upon or brought to the attention of any of them, and that their engagement with the Applicant was confined to the ordinary processing of her complaints in the normal course of duty. The 5th Respondent similarly denies having been served.
15. In support of her assertion that the tribunal order was served, the Applicant relied on an affidavit of service sworn on 18th February 2025 by Joseph Mogaka Moemi, a licensed court process server. In that affidavit, the process server depones that on 18th February 2025 and again on 18th April 2025, he attended the landlord’s residence and Keroka Police Station, where he served persons described as the “landlord,” the “O.C.S.” and the “O.C.P.D.” with copies of the tribunal order and a hearing notice. He indicates the dates, approximate times and places of service and states that the persons served accepted the documents but declined to acknowledge service by signing.
16. A perusal of the affidavit of service does not disclose how the process server identified the individuals he alleges to have been the landlord, the OCS and the OCPD. The affidavit does not state whether the alleged recipients identified themselves, whether the process server knew them beforehand, or whether they were pointed out to him by any third party. No names, badge numbers, service numbers, ranks or physical descriptions are provided, leaving the identity of the alleged recipients wholly unparticularised.
17. Further, although the 2nd, 3rd and 4th Respondents did not participate in these proceedings, there is no evidence on record demonstrating that they were ever served with, or otherwise became aware of, the tribunal order relied upon by the Applicant.
18. The authorities cited by the parties underscore the strict standard applicable in contempt proceedings. In Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & Another [2005] eKLR and Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR, the Courts emphasised that contempt, being quasi-criminal in nature, requires strict proof not only of the existence of a valid order but also of service of, or knowledge of, that order. Similarly, in Republic v Principal Secretary, Ministry of Defence & Another Ex parte George Kariuki Waithaka [2019] eKLR, the Court reiterated that knowledge of a court order must be demonstrated through clear, cogent and credible evidence.
19. In the circumstances, having regard to the unchallenged denials by the 6th Respondent (on his own behalf and on behalf of the 1st, 7th and 8th Respondents), the denial by the 5th Respondent, the deficiencies in the affidavit of service, and the absence of any evidence showing that the 2nd, 3rd and 4th Respondents were notified of the tribunal order, the Court is not satisfied that service or knowledge has been established to the standard required in contempt proceedings. In contempt proceedings, the mere reference to an office or title, without identifying the specific individual alleged to have been served particularly where service is not acknowledged cannot amount to proof of service. The Applicant has therefore failed to prove that any of the Respondents were aware of the terms of the tribunal order she seeks to enforce.
3) Whether the Respondents wilfully disobeyed a lawful order
13. The Applicant alleges that the Respondents demolished her structures, destroyed her belongings, and evicted her in disregard of the tribunal order she relies upon. However, contempt cannot arise in the abstract. It requires not only the existence of a valid order but proof that the alleged contemnors were aware of it. Without proof of service or knowledge, no act, however objectionable, can amount to wilful disobedience.
14. The Applicant cited Republic v Attorney General & Another Ex parte Mike Maina Kamau [2019] eKLR, a decision affirming that once a party has been served with a court order, obedience is mandatory irrespective of personal disagreement with its terms. That authority, however, rests on a factual foundation wholly absent in the present case, as the contemnors in Mike Maina were indisputably served. The Applicant also relied on the classical authority of Hadkinson v Hadkinson [1952] 2 All ER 567, which reiterates the principle that court orders must be obeyed as a matter of obligation, though that authority likewise presupposes the existence of a valid, clear, and duly communicated order.
15. The Respondents have given a different account of events. The 1st, 5th, 6th and 7th Respondents elaborate that they received and processed the Applicant’s complaints in accordance with their statutory mandate, receiving her reports, issuing her with a P3 form, opening inquiry files, facilitating refunds in appropriate circumstances, and ultimately charging the 5th Respondent with assault where the evidence warranted prosecution. These steps, viewed objectively, are entirely consistent with administrative policing functions and inconsistent with deliberate defiance of a tribunal directive. The 5th Respondent disputes the Applicant’s factual allegations and denies any intentional wrongdoing.
16. Given the failure to establish service or knowledge, and given the factual contestation surrounding the events themselves, the Court cannot attribute wilful disobedience to the Respondents. A finding of contempt requires a deliberate, informed, and conscious breach of a known obligation. No such basis has been laid in this case.
4) Whether the legal threshold for contempt has been met
17. The elements of civil contempt are well settled. In Cecil Miller v Jackson Njeru & Another [2017] eKLR, the Court identified four essential requirements: the existence of a clear and unambiguous order; knowledge of that order by the alleged contemnor; breach of the terms of the order; and wilful and deliberate disobedience. The same position was reiterated in Getecha v Hydro Developers Ltd (2025) KEELC 721 (KLR), where the Court emphasised that absence of service or knowledge is fatal to contempt proceedings.
18. Applying those principles to the findings already made under issues 2 and 3 above, although a valid tribunal order exists, the Applicant failed to prove that the Respondents were served with, or were otherwise aware of, its terms. In the absence of knowledge, neither breach nor wilful disobedience can be established.
19. The Applicant has therefore not satisfied the legal threshold for contempt as articulated in Cecil Miller v Jackson Njeru & Another (supra) and Getecha v Hydro Developers Ltd (supra). The contempt jurisdiction, being quasi-criminal in nature, is not triggered on the facts of this case.
Disposition
20. Accordingly, the Court makes the following orders:
1) The Notice of Motion dated 08th May 2025 is hereby dismissed.
2) The prayer for the committal of the Respondents for contempt is declined.
3) All ancillary and consequential prayers, including those seeking occupation of the premises, compensation, or any further relief, are dismissed.
4) This file is closed
5) Costs of the application shall be borne by the Applicant.