RULING
1. Coming up for determination is the Notice of Motion dated 11.11.2025 seeking the following orders: -
(i) Spent.
(ii) An order be and is hereby issued directing that the 1 st to 4 th contemnors who had the knowledge of the court orders and upon whom the orders given on 4 th November 2025 were duly served to appear before this court and show cause why they should not be committed to civil jail for contempt of court.
(iii) An order be and is hereby issued directing that the 1 st to 4 th contemnors who had knowledge of the court orders and upon whom the orders given on 4 th November 2025 were duly served, be cited for contempt of valid courts and be committed to civil jail for a period of 6 months or such period as the court orders may deem just and expedient.
(iv) Alternative to prayers (1) and (2) above, an order be and is hereby issued directing the 1 st to 4 th contemnors to forthwith purge contempt by complying with this court’s orders given on 4 th of November 2025 and failure to which prayer 2 above stands granted.
(v) Any other order and/or directions that the Honourable court may deem just and expedient to protect, prepare and uphold the constitutional right of the petitioners.
(vi) The officer commanding Angata Barkoi police station and/or relevant police station with the requisite territorial jurisdiction shall execute the orders herein.
(vii) Costs of this application be proved for.
2. The application is premised on grounds interalia , that the petitioner approached the court vide an application dated 30.10.2025 and was granted interim conservatory orders on 4 th of November 2025 in terms of prayer 2 of the said Application, which prayer was in terms as follows; -
“That pending the hearing and determination of this application inter-partes, a conservatory order be issued restraining the Respondents whether by themselves, their agents, servants or any other person or state official, organ or institution acting on their behalf, from evicting the petitioners, ploughing, fencing, destroying the petitioners’ property and/or in any way interfering with the petitioner’s quiet possession of all that land Land Moyoi/Kailolong/Gairori, Moyoi Adjudication section, in Mashangwa sublocation, Mashangwa location. In Angata division, Transmara South subcounty, in Narok County.”
3. That the orders were served on the Respondents on 4 th and 5 th November 2025 together with the petition and the application dated 30.10.2025.
4. That despite service of the order and notice of penal consequences, the Respondents, failed and/or refused to comply and persist in such refusal, which refusal to obey express, unambiguous and valid court order amounts to contempt of court, which amounts to gross disrespect of this court and a travesty of justice and should not be allowed to subsist and infinitim.
5. The Application was supported by the affidavit of the petitioner/Applicant Mr. Michael Girimbe, who reiterated the grounds in support of the application and annexed a copy of the court orders dated 4 th November 2025 a copy of the affidavit of service dated 10 th November 2025, photographs of destruction and a certificate of production, copies of O.B numbers.
6. The application was opposed initially the interested party the law society of Kenya who had had vide an application for joinder dated 11.11.2025 being joined in the proceedings filed a Replying affidavit as well as submissions on this contempt application through Swanya Law Advocates, however on 06.03.2026 Ms. Robi learned counsel for the interested party indicated that she had instructions to withdraw their participation in the matter, consequently the court shall not consider the Replying affidavit and submissions of the interested party the same having been withdrawn.
7. On behalf of the contemnors/Respondents, grounds of opposition dated 10.02.2026 were filed under the hand of Nyauma, learned Deputy Chief Litigation counsel who raised the following grounds, in opposition to the application for contempt.
(i) That the application is fatally defective, incompetent as it offends mandatory provisions of the judicature Act and Order 52 Rule 3 of the Supreme Court of England Rules.
(ii) That no leave was obtained before commencement of contempt of court proceedings as required by law hence application before court is a nullity.
(iii) That the Application is bad in law, incompetent and a nullity abinitio as no statement of facts was ever served upon the alleged Respondents and contemnors as mandatorily requires by law.
(iv) That the application is bad in law and a nullity abinitio as no Notice of contempt was ever served upon the office of the Attorney General as mandatorily required by law.
(v) That the application is without substance, instituted in bad faith to disparage, malign, ridicule and tarnish the Respondents image, while the supporting affidavit is full of falsehood, misrepresentation of facts and specifically tailored to mislead the court and portray the Respondents and contemnors as individuals who do not comply uphold or respect court orders.
(vi) That the alleged contemnors were not properly served hence contrary to order 5 Rule 15 of the Civil Procedure Rules on how service must be undertaken.
(vii) That no proof has been filed to confirm that indeed the deponent visited Jogoo House Block A.
(viii) That a mere stamping of documents cannot ouset the requirements of Order 5 Rule 15 of the Civil Procedure Rules, while the process server has not attached or indicated his process server registration number as a proof of qualification.
(ix) That the petitioner has not identified the persons involved in the exercise alleged by the petitioner, hence prejudicial to cite the Respondents for contempt without verifying their involvement.
(x) That the fatally defective incurably bad in law, without merit and amounts to an abuse of court process.
8. On the strength of the above grounds the contemnors prayed for dismissal of the application.
9. Upon filing of the above grounds of opposition, the court directed filing of submissions in respect of the said application and slated the matter for mention on 09.03.2026 so as to confirm compliance and take a Ruling date.
10. On the said 09.03.2026, the Respondents/contemnors had not been served with the submissions and had equally not filed their submissions necessitating the matter to be slated again for 19.03.2026; on which date the court reserved its Ruling for 04.06.2026, even on this date the Respondents had not filed submissions.
11. On 02.06.2026, the court mentioned the matter on account of an application dated 16.05.2026 that had been filed by the Respondents in which they sought time to file a Replying affidavit to the contempt application, which application was acceded to by the petitioner and court again extended time for the Respondents/contemnors to file their Replying affidavit in addition to the grounds of opposition that had already been filed and have been alluded to hereinabove.
12. The court equally granted the petitioners/Applicants leave to file a further affidavit if need be as well the court directed filing of submissions in respect of the contempt and reserved the Ruling for today.
13. The background of the matter is given herein so as to give context as to why the Ruling in the matter has taken long, to be delivered, and why the substantive application for injunction and the petitioner are still pending.
14. The court shall now turn to the Replying affidavit filed by the Respondents/contemnors pursuant to the leave granted.
15. The Replying affidavit was deponed by the Enrico Telewa Lyomu the alleged 4 th contemnor who deponed as herefollows; -
(i) That the Notice of Motion is incurably defective, incompetent and offends mandatory provisions of the judicature Act Cap 8 Laws of Kenya and Civil Procedure Rules 2020 part 81 of the Civil Procedure Rules of England.
(ii) That the motion is incurably defective as it was premised on unambiguous court order.
(iii) That the service was vide WhatsApp and there was not confirmation that the message was read.
(iv) That the number on the WhatsApp is used as his home numbe and used during weekends and not working hours.
(v) That the phone number had disappearing messages hence the deponent did not read the messages, and that the affidavit of Joseph Hillary Otieno does not show that the recipient acknowledged the court order.
(vi) That the deponent had no knowledge of the existence of the court order as no personal service was effected on the deponen.t
(vii) That there is no demonstration of how the order was breached hence there was no evidence to support the breach of the order.
(viii) That there was material non-disclosure which lead to the issuance of the court order as there is no parcel of land known as Moyoi, Kailolong, Gairoro Moyoi Adjudication section hence making the order ambigious as the said parcel of land was non-existence.
(ix) That the 1 st contemnor had never been on the suit property
16. The 3 rd contemnor Mr. Stephen Emojony, a deputy county commissioner equally filed a Replying affidavit in which he deposed as follows; -
(i) That the Application was incurably defective, incompetent as it offended provisions of the Civil Procedure.
(ii) The Replying affidavit by the 3 rd contemnor replicates almost word for word the Replying affidavit of the 4 th contemnor.
(iii) The contemnor equally filed a Replying affidavit which was parimateriae with the Replying affidavits of both the 3 rd and 4 th contemnor, save for depositions that he was never personally served with the said conservatory order.
(iv) The 2 nd contemnor, Hon. Kipchumba Murkomen, equally filed a Replying affidavit which was parimateriae with the Replying affidavit of the other 3 contemnors, save for the depositions that he was never personally served with the said conservatory order. The Applicants did not file a further affidavit.
Applicant’s Submissions
17. In their submissions dated 20 th of February 2026, the Petitioner/Applicant framed and submitted on 3 issues for determination, to wit,
(i) Whether the application has been sufficiently challenged/controverted.
(ii) Whether this application is competent; and
(iii) Whether the 1 st to 4 th Respondents/Contemnors should be held liable for contempt.
18. On issue 1, it is submitted by the Applicants, that grounds of opposition as were filed herein, do not refute or engage, the specific factual issues raised in an application and reliance on this limb of submissions was placed on the decision in the case of Mutai and 9 Others Vs. Attorney General Civil Appeal No. 95 of 2016 (2019) KECA 125 KLR where the Court of Appela hed interalia , “As stated earlier the Respondents did not file any Replying affidavit to challenge and/or controvert the sworn averment by the petitioners, that they were victims of post-election violence. Grounds of opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath…”
19. Further reliance was placed on the decision in the case of Kennedy Otieno Odiyo and 12 Others Vs. Kenya Electricity Generating Company (2010) eKLR , and ARJ Capital Limited Vs. Njeru and 3 Others, ELC E041 of 2022 (2024) KEELC 323, to buttress the said point.
20. On issue number 1, the petitioner submits placing reliance on the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans and 11 Others, that in contempt of court proceedings, arising out a breach of an order or judgment or undertaking to do or abstain from doing an act, under Rules 81.4 requires no leave of the court for it to be commenced. Hence the Applicant submits that the objection made in this regard is therefore not founded.
21. Further reliance on this limb of submissions was placed on the decision in the case of Kenya Country Bus Owner’s Association and Others Vs. Cabinet Secretary for Transport and Infrastructure .
22. On service of the court orders, the Applicants places reliance on the annexed affidavit of service of Mr. Joseph Otieno Odundo, that service of the orders was effected.
23. On the 3 rd issue, the Applicants placing reliance on Samuel M.N. Mweru and Others Vs. National Land Commission and 2 Others (2020) KEHC , on the elements to be proven in civil contempt and the Applicant submits that the elements have been proven.
24. The elements being;
(i) Knowledge of the terms of the order.
(ii) Clear and unambiguous orders which were binding.
(iii) Breach of the orders.
(iv) Deliberate conduct of the contemnors.
25. Further reliance is placed on the decision in the case of Law Society of Kenya and 3 Others Vs. Inspector General of Police and 4 Others Petition No. E436 OF 2024 (2024) KECHC 10634 KLR .
26. On the strength of the above submissions the petitioner/Applicant urges the court to allow the Application.
27. Before turning to the Respondents submissions, the court notes that the Petitioner/Applicant, did not file a further affidavit and supplementary submissions despite being granted leave. The Applicants thus did not respond to the issues raised in the Replying affidavits of the alleged contemnors/Respondents.
Respondents/Contemnors Submissions
28. The Respondents framed and submitted on 3 issues; to wit,
(i) Whether or not the Applicants have met the mandatory substantive and procedural requirements for contempt Application.
(ii) Whether the Applicant have established and proven the four basic elements of civil contempt.
29. On issue NO. 1, the Respondents submit that upon repeal of the contempt of court Act, the position reverted to the procedure under part 81 of the English Civil Procedure Amendment No. 3 Rules 2020 and in support of this submission the Respondent cited the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans and 11 Others 2014 (KECA) 840 KLR.
30. On issue No. 2, the Respondent submit that the terms of the orders were unambiguous as there is no parcel of land known as Moyoi/Kailolong/Gairoro, Moyoi Adjudication.
31. That the order as framed was not identifiable with any specific parcel of land.
32. The Respondents further submit that there was no personal service on the 1 st and 2 nd contemnors, while in respect to the 3 rd and 4 th contemnors they submit that there was no delivery message in respect of the service via the WhatsApp (mobile enabled messaging) as required under Order 5 Rule 22 of the Civil Procedure Rules.
33. The Respondent submit that there was no breach of the orders served.
34. Thus, the conduct was not deliberate and therefore the Applicant is not entitled to the orders sought and the Respondent urge the court to dismiss the Application.
Issues for Determination
35. Arising from the application, the grounds of opposition, the Replying affidavits and the submissions of the parties and upon consideration of the law, the court frames the following as issues for determination; -
(i) Whether the Application is fatally defective in view of the provisions of the judicature Act and Rules of Civil Procedure of England?
(ii) Whether or not the orders dated 4 th of November 2025 were served on the contemnors and if the process servers were duly qualified to effect service.
(iii) Whether the applicant has proved the elements for civil contempt of court and whether the application is merited?
(iv) What reliefs ought to issue?
(v) Who bears the costs of the application?
Analysis and Determination
36. On issue No. 1, the procedure for commencement of contempt of court proceedings post the declaration of the unconstitutionality of the contempt of court Act was discussed in the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans 2014 eKLR where the court of Appeal observed interalia as follows; -
“Following the implementation of the famous Lord Woolfs Access to Justice Report 1996, the Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rules…part 81 (Application proceedings in relation to contempt of court) provides different procedures for four different violations.
Rules 81.4 relates to committal for “breach of a judgment, order or undertaking to do or abstain from doing an act.” An application under Rule 81.4 breach of Judgment, order or undertaking, now referred to as ;
“Application Notice (as opposed to a notice of motion) is relevant one for the application before us.
…we find on the basis of the new Civil Procedure Rules of England, which are now contained in the second supplement to the 2012 white book, that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this court’s order…”
37. In view of the above the court finds that the objections contained in the Grounds of Opposition filed by the Contemnors and replicated in their respective Replying Affidavits as to the defectiveness of the instant application is unfounded as no leave was required to file the contempt of court proceedings, in relation to a breach of an order; as is the one before court.
38. The court is surprised that the Respondents relying on this same decision, have submitted on the requirement of leave, while it is clear from the said decision, that no leave is required if the contempt is premised under Rule 81.4 and relates to breach of a court order and/or judgment.
39. In answer to issue No. 1 the court thus finds that the contempt application as filed and presented to court is not fatally defective.
40. As regards the issue of service of the order dated 4 th of November 2025 upon the contemnors the 1 st and 2 nd contemnor have refuted and/or denied service of the orders, while the 3 rd and 4 th contemnors have while acknowledging the two respective mobile numbers on their replying affidavits to be theirs, have stated that the said phones were their home phones and that they did have knowledge of the orders.
41. There is also the issue raised in the Grounds of Opposition that the court process server were not duly licensed, and the court will deal with this issue firstly then the issue of service on the contemnors.
42. There is exhibited in the said affidavit of service of Joseph H. Otieno Odundo a receipt from Milimani Law Courts issued on December 23, 2024, serial number R.A-0404545 being a receipt for process server renewal fees issued to Joseph Hillary Otieno Odundo. The receipt confirms that the process server had paid his renewal fees and was therefore licensed to serve the court process and the Respondents objection in this regard is unfounded.
43. I have perused the affidavit of service of Joseph H. Otieno Odundo deponed on 10 th of December 2025, annexed in the supporting affidavit of the petitioner/Applicant where he annexed whatsapp messages showing services on two mobile number +254729***065 as well as +254722722***353. These two numbers were said to be the home numbers of the 3 rd and 4 th contemnors; they both reveal double grey ticks which in the ordinary custom of WhatsApp messaging application indicates delivery of a message.
44. The court has found that WhatsApp messages were sent to the known numbers of the 3 rd and 4 th contemnors, in the foregoing paragraphs hence the issue will now be whether that service was proper service. Indeed Order 5 Rule 22(c) of the Civil Procedure Rules, recognizes service of summons via the mobile enabled messaging Applications the said Rules require service on the defendants last known and used telephone number. The said order provides interalia :
(i) Service shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day, in the jurisdiction sent, and if it sent outside of the business hours and on a day that is not a business day, it shall be considered to have been served on the business day subsequent.
(ii) Service shall be deemed to have been effected when mobile enabled messaging services when the sender receives a delivery receipt.
45. Unlike in an email where service requires a separate delivery note to be annexed , in the WhatsApp mobile enable service, proof of delivery is by way of the double grey ticks or the double blue ticks as the particular settings of the Whatsapp application are tailored and therefore does not require n a separate delivery note.
46. In relation to the service upon the 3 rd and 4 th contemnor, the same were effected on Tuesday at 18.42 hours hence they were deemed to have been effected on Wednesday, 5 th of November 2025. There was therefore service upon the 3 rd and 4 th contemnors of the orders dated 4 th of November 2025.
47. With regard to the 1 st and 2 nd contemnors, the affidavit of service of Joseph Hillary Otieno Odundo sworn on 10 th of December 2025 at paragraphs 2 and 3 thereof states that service was effected at Jogoo House Block A 3 rd floor Room 17 and was stamped, and upon the Ministry of Interior and Nation Administration as well as the A.G’s office at Kisii.
48. In Akoyo Vs. Permanent Secretary, State Department for Devolution, Attorney General (Interested Party) the court observed that “ personal service was an elementary but mandatory procedural rule.”
49. With regard to the 1 st and 2 nd contemnors, no personal service was effected upon them, neither did the Applicant seeks substituted service upon them, and the court finds that in absence of personal service on the 1 st and 2 nd contemnor, they were not properly served with the orders dated 4 th of November 2025, and the court reluctantly finds that they are not liable for contempt of court.
50. Having found the 3 rd and 4 th contemnors to have been served via the WhatsApp mobile enable messaging Application the court shall now proceed to put the application under the test set out in the case of Samuel M.N. Mweru Vs. National Land Commission and 2 Others , which both parties have cited as laying down the test to be satisfied for Civil contempt of court.
51. In the said decision, the elements to be proven in a contempt of court application were held to be as follows;”
- it is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove; -
(i) The terms of the order.
(ii) Knowledge of these terms by the Respondent.
(iii) Failure by the Respondent to comply with the terms of the order.
Upon proof of these requirements the presence of willingness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book of contempt in modern New Zealand who succinctly stated.
“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must proof to the required standard (in civil contempt cases) which is higher than civil cases that; -
(a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant.
(b) The defendant had knowledge of or proper notice of the terms of the order.
(c) The defendant has acted in breach of the terms of the order and
(d) The defendant’s conduct was deliberate…”
52. Applying the elements to the application before court. The 3 rd and 4 th contemnors contend that the terms of the orders were not clear.
“The orders dated 4 th of November 2015 were to the effect “that a conservatory order in terms of prayer No. 2 of the application is issued in terms of the application…”
53. The suit and orders were served. Prayer 2 of the application was couched in terms as follows;
“That pending the hearing and determination of this application inter-partes, a conservatory order be issued restraining the Respondents whether by themselves, their agents, servants or any other persons, or state official, organ or institution acting on their behalf, from evicting the petitioners, ploughing, fencing, destroying the petitioner’s property and in any way interfering with the petitioner’s quiet possession of all that land Moyoi/Kailolong/Gairoro, Moyoi Adjudication section in Mashangwa sublocation in Mashangwa location in Angat Division, Transmara South subcounty, in Narok county (hereinafter the suit property)”.
54. It follows from the above that the terms of the order prohibited eviction, ploughing, fencing and destroying the petitioner’s property and the said terms were clear and unambiguous.
55. On knowledge of the order, since there was service of the order upon the 3 rd and 4 th Respondent, they are deemed to have had knowledge of the terms of the order.
56. Was there a breach of the orders by the 3 rd and 4 th contemnors.
57. The Petitioner/Applicant has annexed photographs in his supporting affidavit showing demolition of houses, and destruction of trees and fencing of sections with houses on them and OB report relating to malicious damages made from 06.09.2025, 09.11.2025 and 11.10.2025 at Gwitembe police post reveals a report of malicious damage was made.
58. There is no doubt, that there was eviction of the petitioners from the suit property and there was indeed breach of the order the court had issued.
59. As noted above, in the decision in Samuel M.N. Mweru Vs. National Land Commission aforesaid in so far as knowledge and service of the order was confirmed, the court should imputes bad faith and deliberate conduct on the part of the 3 rd and 4 th contemnors. The 3 rd and 4 th contemnors raised no rebuttals at all.
60. In a nutshell, the Application of contempt of court has met the threshold as the elements has been proven against the 3 rd and 4 th contemnors and the court finds that the 3 rd and 4 th contemnors to be in contempt of its orders but acquits the 1 st and 2 nd contemnors.
61. On what reliefs ought to issue, the court finds that prayers 2, 4 and 6 of the application to be untenable but proceeds to convict the 3 rd and 4 th contemnors of court and acquits the 1 st and 2 nd contemnors.
62. The said 3 rd and 4 th contemnors shall appear personally and physically in court on 6 th of October 2026 for mitigation and sentencing.
63. Costs of the application shall be borne by the Respondents in any event.
Dated at Kilgoris this 17 th day of September, 2026.
Hon. M.N Mwanyale
Judge
In the presence of
CA Sylvia/Clara
Mr. Moroga for Petitioner/Applicant
Mr. Wabwire for the Contemnors
Page 1 | 2
1. Coming up for determination is the Notice of Motion dated 11.11.2025 seeking the following orders: -
(i) Spent.
(ii) An order be and is hereby issued directing that the 1 st to 4 th contemnors who had the knowledge of the court orders and upon whom the orders given on 4 th November 2025 were duly served to appear before this court and show cause why they should not be committed to civil jail for contempt of court.
(iii) An order be and is hereby issued directing that the 1 st to 4 th contemnors who had knowledge of the court orders and upon whom the orders given on 4 th November 2025 were duly served, be cited for contempt of valid courts and be committed to civil jail for a period of 6 months or such period as the court orders may deem just and expedient.
(iv) Alternative to prayers (1) and (2) above, an order be and is hereby issued directing the 1 st to 4 th contemnors to forthwith purge contempt by complying with this court’s orders given on 4 th of November 2025 and failure to which prayer 2 above stands granted.
(v) Any other order and/or directions that the Honourable court may deem just and expedient to protect, prepare and uphold the constitutional right of the petitioners.
(vi) The officer commanding Angata Barkoi police station and/or relevant police station with the requisite territorial jurisdiction shall execute the orders herein.
(vii) Costs of this application be proved for.
2. The application is premised on grounds interalia , that the petitioner approached the court vide an application dated 30.10.2025 and was granted interim conservatory orders on 4 th of November 2025 in terms of prayer 2 of the said Application, which prayer was in terms as follows; -
“That pending the hearing and determination of this application inter-partes, a conservatory order be issued restraining the Respondents whether by themselves, their agents, servants or any other person or state official, organ or institution acting on their behalf, from evicting the petitioners, ploughing, fencing, destroying the petitioners’ property and/or in any way interfering with the petitioner’s quiet possession of all that land Land Moyoi/Kailolong/Gairori, Moyoi Adjudication section, in Mashangwa sublocation, Mashangwa location. In Angata division, Transmara South subcounty, in Narok County.”
3. That the orders were served on the Respondents on 4 th and 5 th November 2025 together with the petition and the application dated 30.10.2025.
4. That despite service of the order and notice of penal consequences, the Respondents, failed and/or refused to comply and persist in such refusal, which refusal to obey express, unambiguous and valid court order amounts to contempt of court, which amounts to gross disrespect of this court and a travesty of justice and should not be allowed to subsist and infinitim.
5. The Application was supported by the affidavit of the petitioner/Applicant Mr. Michael Girimbe, who reiterated the grounds in support of the application and annexed a copy of the court orders dated 4 th November 2025 a copy of the affidavit of service dated 10 th November 2025, photographs of destruction and a certificate of production, copies of O.B numbers.
6. The application was opposed initially the interested party the law society of Kenya who had had vide an application for joinder dated 11.11.2025 being joined in the proceedings filed a Replying affidavit as well as submissions on this contempt application through Swanya Law Advocates, however on 06.03.2026 Ms. Robi learned counsel for the interested party indicated that she had instructions to withdraw their participation in the matter, consequently the court shall not consider the Replying affidavit and submissions of the interested party the same having been withdrawn.
7. On behalf of the contemnors/Respondents, grounds of opposition dated 10.02.2026 were filed under the hand of Nyauma, learned Deputy Chief Litigation counsel who raised the following grounds, in opposition to the application for contempt.
(i) That the application is fatally defective, incompetent as it offends mandatory provisions of the judicature Act and Order 52 Rule 3 of the Supreme Court of England Rules.
(ii) That no leave was obtained before commencement of contempt of court proceedings as required by law hence application before court is a nullity.
(iii) That the Application is bad in law, incompetent and a nullity abinitio as no statement of facts was ever served upon the alleged Respondents and contemnors as mandatorily requires by law.
(iv) That the application is bad in law and a nullity abinitio as no Notice of contempt was ever served upon the office of the Attorney General as mandatorily required by law.
(v) That the application is without substance, instituted in bad faith to disparage, malign, ridicule and tarnish the Respondents image, while the supporting affidavit is full of falsehood, misrepresentation of facts and specifically tailored to mislead the court and portray the Respondents and contemnors as individuals who do not comply uphold or respect court orders.
(vi) That the alleged contemnors were not properly served hence contrary to order 5 Rule 15 of the Civil Procedure Rules on how service must be undertaken.
(vii) That no proof has been filed to confirm that indeed the deponent visited Jogoo House Block A.
(viii) That a mere stamping of documents cannot ouset the requirements of Order 5 Rule 15 of the Civil Procedure Rules, while the process server has not attached or indicated his process server registration number as a proof of qualification.
(ix) That the petitioner has not identified the persons involved in the exercise alleged by the petitioner, hence prejudicial to cite the Respondents for contempt without verifying their involvement.
(x) That the fatally defective incurably bad in law, without merit and amounts to an abuse of court process.
8. On the strength of the above grounds the contemnors prayed for dismissal of the application.
9. Upon filing of the above grounds of opposition, the court directed filing of submissions in respect of the said application and slated the matter for mention on 09.03.2026 so as to confirm compliance and take a Ruling date.
10. On the said 09.03.2026, the Respondents/contemnors had not been served with the submissions and had equally not filed their submissions necessitating the matter to be slated again for 19.03.2026; on which date the court reserved its Ruling for 04.06.2026, even on this date the Respondents had not filed submissions.
11. On 02.06.2026, the court mentioned the matter on account of an application dated 16.05.2026 that had been filed by the Respondents in which they sought time to file a Replying affidavit to the contempt application, which application was acceded to by the petitioner and court again extended time for the Respondents/contemnors to file their Replying affidavit in addition to the grounds of opposition that had already been filed and have been alluded to hereinabove.
12. The court equally granted the petitioners/Applicants leave to file a further affidavit if need be as well the court directed filing of submissions in respect of the contempt and reserved the Ruling for today.
13. The background of the matter is given herein so as to give context as to why the Ruling in the matter has taken long, to be delivered, and why the substantive application for injunction and the petitioner are still pending.
14. The court shall now turn to the Replying affidavit filed by the Respondents/contemnors pursuant to the leave granted.
15. The Replying affidavit was deponed by the Enrico Telewa Lyomu the alleged 4 th contemnor who deponed as herefollows; -
(i) That the Notice of Motion is incurably defective, incompetent and offends mandatory provisions of the judicature Act Cap 8 Laws of Kenya and Civil Procedure Rules 2020 part 81 of the Civil Procedure Rules of England.
(ii) That the motion is incurably defective as it was premised on unambiguous court order.
(iii) That the service was vide WhatsApp and there was not confirmation that the message was read.
(iv) That the number on the WhatsApp is used as his home numbe and used during weekends and not working hours.
(v) That the phone number had disappearing messages hence the deponent did not read the messages, and that the affidavit of Joseph Hillary Otieno does not show that the recipient acknowledged the court order.
(vi) That the deponent had no knowledge of the existence of the court order as no personal service was effected on the deponen.t
(vii) That there is no demonstration of how the order was breached hence there was no evidence to support the breach of the order.
(viii) That there was material non-disclosure which lead to the issuance of the court order as there is no parcel of land known as Moyoi, Kailolong, Gairoro Moyoi Adjudication section hence making the order ambigious as the said parcel of land was non-existence.
(ix) That the 1 st contemnor had never been on the suit property
16. The 3 rd contemnor Mr. Stephen Emojony, a deputy county commissioner equally filed a Replying affidavit in which he deposed as follows; -
(i) That the Application was incurably defective, incompetent as it offended provisions of the Civil Procedure.
(ii) The Replying affidavit by the 3 rd contemnor replicates almost word for word the Replying affidavit of the 4 th contemnor.
(iii) The contemnor equally filed a Replying affidavit which was parimateriae with the Replying affidavits of both the 3 rd and 4 th contemnor, save for depositions that he was never personally served with the said conservatory order.
(iv) The 2 nd contemnor, Hon. Kipchumba Murkomen, equally filed a Replying affidavit which was parimateriae with the Replying affidavit of the other 3 contemnors, save for the depositions that he was never personally served with the said conservatory order. The Applicants did not file a further affidavit.
Applicant’s Submissions
17. In their submissions dated 20 th of February 2026, the Petitioner/Applicant framed and submitted on 3 issues for determination, to wit,
(i) Whether the application has been sufficiently challenged/controverted.
(ii) Whether this application is competent; and
(iii) Whether the 1 st to 4 th Respondents/Contemnors should be held liable for contempt.
18. On issue 1, it is submitted by the Applicants, that grounds of opposition as were filed herein, do not refute or engage, the specific factual issues raised in an application and reliance on this limb of submissions was placed on the decision in the case of Mutai and 9 Others Vs. Attorney General Civil Appeal No. 95 of 2016 (2019) KECA 125 KLR where the Court of Appela hed interalia , “As stated earlier the Respondents did not file any Replying affidavit to challenge and/or controvert the sworn averment by the petitioners, that they were victims of post-election violence. Grounds of opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath…”
19. Further reliance was placed on the decision in the case of Kennedy Otieno Odiyo and 12 Others Vs. Kenya Electricity Generating Company (2010) eKLR , and ARJ Capital Limited Vs. Njeru and 3 Others, ELC E041 of 2022 (2024) KEELC 323, to buttress the said point.
20. On issue number 1, the petitioner submits placing reliance on the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans and 11 Others, that in contempt of court proceedings, arising out a breach of an order or judgment or undertaking to do or abstain from doing an act, under Rules 81.4 requires no leave of the court for it to be commenced. Hence the Applicant submits that the objection made in this regard is therefore not founded.
21. Further reliance on this limb of submissions was placed on the decision in the case of Kenya Country Bus Owner’s Association and Others Vs. Cabinet Secretary for Transport and Infrastructure .
22. On service of the court orders, the Applicants places reliance on the annexed affidavit of service of Mr. Joseph Otieno Odundo, that service of the orders was effected.
23. On the 3 rd issue, the Applicants placing reliance on Samuel M.N. Mweru and Others Vs. National Land Commission and 2 Others (2020) KEHC , on the elements to be proven in civil contempt and the Applicant submits that the elements have been proven.
24. The elements being;
(i) Knowledge of the terms of the order.
(ii) Clear and unambiguous orders which were binding.
(iii) Breach of the orders.
(iv) Deliberate conduct of the contemnors.
25. Further reliance is placed on the decision in the case of Law Society of Kenya and 3 Others Vs. Inspector General of Police and 4 Others Petition No. E436 OF 2024 (2024) KECHC 10634 KLR .
26. On the strength of the above submissions the petitioner/Applicant urges the court to allow the Application.
27. Before turning to the Respondents submissions, the court notes that the Petitioner/Applicant, did not file a further affidavit and supplementary submissions despite being granted leave. The Applicants thus did not respond to the issues raised in the Replying affidavits of the alleged contemnors/Respondents.
Respondents/Contemnors Submissions
28. The Respondents framed and submitted on 3 issues; to wit,
(i) Whether or not the Applicants have met the mandatory substantive and procedural requirements for contempt Application.
(ii) Whether the Applicant have established and proven the four basic elements of civil contempt.
29. On issue NO. 1, the Respondents submit that upon repeal of the contempt of court Act, the position reverted to the procedure under part 81 of the English Civil Procedure Amendment No. 3 Rules 2020 and in support of this submission the Respondent cited the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans and 11 Others 2014 (KECA) 840 KLR.
30. On issue No. 2, the Respondent submit that the terms of the orders were unambiguous as there is no parcel of land known as Moyoi/Kailolong/Gairoro, Moyoi Adjudication.
31. That the order as framed was not identifiable with any specific parcel of land.
32. The Respondents further submit that there was no personal service on the 1 st and 2 nd contemnors, while in respect to the 3 rd and 4 th contemnors they submit that there was no delivery message in respect of the service via the WhatsApp (mobile enabled messaging) as required under Order 5 Rule 22 of the Civil Procedure Rules.
33. The Respondent submit that there was no breach of the orders served.
34. Thus, the conduct was not deliberate and therefore the Applicant is not entitled to the orders sought and the Respondent urge the court to dismiss the Application.
Issues for Determination
35. Arising from the application, the grounds of opposition, the Replying affidavits and the submissions of the parties and upon consideration of the law, the court frames the following as issues for determination; -
(i) Whether the Application is fatally defective in view of the provisions of the judicature Act and Rules of Civil Procedure of England?
(ii) Whether or not the orders dated 4 th of November 2025 were served on the contemnors and if the process servers were duly qualified to effect service.
(iii) Whether the applicant has proved the elements for civil contempt of court and whether the application is merited?
(iv) What reliefs ought to issue?
(v) Who bears the costs of the application?
Analysis and Determination
36. On issue No. 1, the procedure for commencement of contempt of court proceedings post the declaration of the unconstitutionality of the contempt of court Act was discussed in the decision in the case of Christine Wangari Gachege Vs. Elizabeth Wanjiru Evans 2014 eKLR where the court of Appeal observed interalia as follows; -
“Following the implementation of the famous Lord Woolfs Access to Justice Report 1996, the Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rules…part 81 (Application proceedings in relation to contempt of court) provides different procedures for four different violations.
Rules 81.4 relates to committal for “breach of a judgment, order or undertaking to do or abstain from doing an act.” An application under Rule 81.4 breach of Judgment, order or undertaking, now referred to as ;
“Application Notice (as opposed to a notice of motion) is relevant one for the application before us.
…we find on the basis of the new Civil Procedure Rules of England, which are now contained in the second supplement to the 2012 white book, that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this court’s order…”
37. In view of the above the court finds that the objections contained in the Grounds of Opposition filed by the Contemnors and replicated in their respective Replying Affidavits as to the defectiveness of the instant application is unfounded as no leave was required to file the contempt of court proceedings, in relation to a breach of an order; as is the one before court.
38. The court is surprised that the Respondents relying on this same decision, have submitted on the requirement of leave, while it is clear from the said decision, that no leave is required if the contempt is premised under Rule 81.4 and relates to breach of a court order and/or judgment.
39. In answer to issue No. 1 the court thus finds that the contempt application as filed and presented to court is not fatally defective.
40. As regards the issue of service of the order dated 4 th of November 2025 upon the contemnors the 1 st and 2 nd contemnor have refuted and/or denied service of the orders, while the 3 rd and 4 th contemnors have while acknowledging the two respective mobile numbers on their replying affidavits to be theirs, have stated that the said phones were their home phones and that they did have knowledge of the orders.
41. There is also the issue raised in the Grounds of Opposition that the court process server were not duly licensed, and the court will deal with this issue firstly then the issue of service on the contemnors.
42. There is exhibited in the said affidavit of service of Joseph H. Otieno Odundo a receipt from Milimani Law Courts issued on December 23, 2024, serial number R.A-0404545 being a receipt for process server renewal fees issued to Joseph Hillary Otieno Odundo. The receipt confirms that the process server had paid his renewal fees and was therefore licensed to serve the court process and the Respondents objection in this regard is unfounded.
43. I have perused the affidavit of service of Joseph H. Otieno Odundo deponed on 10 th of December 2025, annexed in the supporting affidavit of the petitioner/Applicant where he annexed whatsapp messages showing services on two mobile number +254729***065 as well as +254722722***353. These two numbers were said to be the home numbers of the 3 rd and 4 th contemnors; they both reveal double grey ticks which in the ordinary custom of WhatsApp messaging application indicates delivery of a message.
44. The court has found that WhatsApp messages were sent to the known numbers of the 3 rd and 4 th contemnors, in the foregoing paragraphs hence the issue will now be whether that service was proper service. Indeed Order 5 Rule 22(c) of the Civil Procedure Rules, recognizes service of summons via the mobile enabled messaging Applications the said Rules require service on the defendants last known and used telephone number. The said order provides interalia :
(i) Service shall be deemed served on the day which it is sent; if it is sent within the official business hours on a business day, in the jurisdiction sent, and if it sent outside of the business hours and on a day that is not a business day, it shall be considered to have been served on the business day subsequent.
(ii) Service shall be deemed to have been effected when mobile enabled messaging services when the sender receives a delivery receipt.
45. Unlike in an email where service requires a separate delivery note to be annexed , in the WhatsApp mobile enable service, proof of delivery is by way of the double grey ticks or the double blue ticks as the particular settings of the Whatsapp application are tailored and therefore does not require n a separate delivery note.
46. In relation to the service upon the 3 rd and 4 th contemnor, the same were effected on Tuesday at 18.42 hours hence they were deemed to have been effected on Wednesday, 5 th of November 2025. There was therefore service upon the 3 rd and 4 th contemnors of the orders dated 4 th of November 2025.
47. With regard to the 1 st and 2 nd contemnors, the affidavit of service of Joseph Hillary Otieno Odundo sworn on 10 th of December 2025 at paragraphs 2 and 3 thereof states that service was effected at Jogoo House Block A 3 rd floor Room 17 and was stamped, and upon the Ministry of Interior and Nation Administration as well as the A.G’s office at Kisii.
48. In Akoyo Vs. Permanent Secretary, State Department for Devolution, Attorney General (Interested Party) the court observed that “ personal service was an elementary but mandatory procedural rule.”
49. With regard to the 1 st and 2 nd contemnors, no personal service was effected upon them, neither did the Applicant seeks substituted service upon them, and the court finds that in absence of personal service on the 1 st and 2 nd contemnor, they were not properly served with the orders dated 4 th of November 2025, and the court reluctantly finds that they are not liable for contempt of court.
50. Having found the 3 rd and 4 th contemnors to have been served via the WhatsApp mobile enable messaging Application the court shall now proceed to put the application under the test set out in the case of Samuel M.N. Mweru Vs. National Land Commission and 2 Others , which both parties have cited as laying down the test to be satisfied for Civil contempt of court.
51. In the said decision, the elements to be proven in a contempt of court application were held to be as follows;”
- it is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove; -
(i) The terms of the order.
(ii) Knowledge of these terms by the Respondent.
(iii) Failure by the Respondent to comply with the terms of the order.
Upon proof of these requirements the presence of willingness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book of contempt in modern New Zealand who succinctly stated.
“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must proof to the required standard (in civil contempt cases) which is higher than civil cases that; -
(a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant.
(b) The defendant had knowledge of or proper notice of the terms of the order.
(c) The defendant has acted in breach of the terms of the order and
(d) The defendant’s conduct was deliberate…”
52. Applying the elements to the application before court. The 3 rd and 4 th contemnors contend that the terms of the orders were not clear.
“The orders dated 4 th of November 2015 were to the effect “that a conservatory order in terms of prayer No. 2 of the application is issued in terms of the application…”
53. The suit and orders were served. Prayer 2 of the application was couched in terms as follows;
“That pending the hearing and determination of this application inter-partes, a conservatory order be issued restraining the Respondents whether by themselves, their agents, servants or any other persons, or state official, organ or institution acting on their behalf, from evicting the petitioners, ploughing, fencing, destroying the petitioner’s property and in any way interfering with the petitioner’s quiet possession of all that land Moyoi/Kailolong/Gairoro, Moyoi Adjudication section in Mashangwa sublocation in Mashangwa location in Angat Division, Transmara South subcounty, in Narok county (hereinafter the suit property)”.
54. It follows from the above that the terms of the order prohibited eviction, ploughing, fencing and destroying the petitioner’s property and the said terms were clear and unambiguous.
55. On knowledge of the order, since there was service of the order upon the 3 rd and 4 th Respondent, they are deemed to have had knowledge of the terms of the order.
56. Was there a breach of the orders by the 3 rd and 4 th contemnors.
57. The Petitioner/Applicant has annexed photographs in his supporting affidavit showing demolition of houses, and destruction of trees and fencing of sections with houses on them and OB report relating to malicious damages made from 06.09.2025, 09.11.2025 and 11.10.2025 at Gwitembe police post reveals a report of malicious damage was made.
58. There is no doubt, that there was eviction of the petitioners from the suit property and there was indeed breach of the order the court had issued.
59. As noted above, in the decision in Samuel M.N. Mweru Vs. National Land Commission aforesaid in so far as knowledge and service of the order was confirmed, the court should imputes bad faith and deliberate conduct on the part of the 3 rd and 4 th contemnors. The 3 rd and 4 th contemnors raised no rebuttals at all.
60. In a nutshell, the Application of contempt of court has met the threshold as the elements has been proven against the 3 rd and 4 th contemnors and the court finds that the 3 rd and 4 th contemnors to be in contempt of its orders but acquits the 1 st and 2 nd contemnors.
61. On what reliefs ought to issue, the court finds that prayers 2, 4 and 6 of the application to be untenable but proceeds to convict the 3 rd and 4 th contemnors of court and acquits the 1 st and 2 nd contemnors.
62. The said 3 rd and 4 th contemnors shall appear personally and physically in court on 6 th of October 2026 for mitigation and sentencing.
63. Costs of the application shall be borne by the Respondents in any event.
Dated at Kilgoris this 17 th day of September, 2026.
Hon. M.N Mwanyale
Judge
In the presence of
CA Sylvia/Clara
Mr. Moroga for Petitioner/Applicant
Mr. Wabwire for the Contemnors
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