(On whether the appellants/respondents are in contempt of court)
The Application
1. The respondent/applicants filed a Notice of Motion application dated 14th April 2025 under a Certificate of Urgency. The application is brought under sections 1A, 1B, 3a, 63 (c) and (e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules 2010.
2. The respondents/applicants seek ORDERS:
a) Spent
b) That this Honourble court be pleased to order the 1st and 2nd appellant/respondents to appear before it to show cause why the should not he cited for abuse of the court process or contempt of court orders issued on 6th March 2025
c) That Honourable court be pleased to order the appellants/respondents herein be committed to civil jail for a term of (6) months for disobeying the court orders issued on 6th March 2025 and consequently purge their contemptuous act forthwith
d) That in lieu of the prayer issued in prayer 2, the appellants/ respondents herein be cited for contempt of court orders and be fined a sum of at least Ksh.200,000/=
e) That the costs of this application be provided for.
3. The application is based on the grounds outlined on the face of the applications as well as the supporting affidavit of David Onyango Mireri sworn on even date. The respondents/ appellants contend that this court issued an order vide the ruling delivered on 6th March 2024. The said order was over land parcel no. Central Kasipul/Kachieni/1542. The respondents/applicants further stated that the court directed that there should be no construction as well as the growing of perennial crops on the suit property. They maintained the order and the said directions were issued against the backdrop of the appellants/respondents compromising their application dated 27th September 2024. The respondent/applicants argued that the appellant/respondent’s actions are in violation of the order and directives of the court as the said appellant/respondents are on the verge of commencing construction on the suit property since they have already brought materials on the said land besides making bricks thereon.
4. The appellant/respondents contend that barely a month after the court issued its order and directives the respondent/applicants begun engaging in actions that the respondent/applicant’s regard as amounting to contempt of court.
5. In addition to the above, the respondent/applicants maintained despite being the ones in occupation of the suit property, they have been barred from doing anything on the said land since the appellants /respondents have created a hostile ground thus hindering the implementation of the aforestated court order.
6. Lastly, the respondents/applicants maintained that the actions of the appellants /respondents are calculated to frustrate the respondent/applicants as well as to demean the award of the trial court granted vide its judgment dated 24th September 2024, and whose effect was to restrain the appellant/respondents from entering the suit property. The respondents/applicants also stated that the actions of the appellant/respondents were meant to demean the authority of the court with regard to its orders issued on 6th March 2025.
7. On the basis of these grounds, the respondents/applicants prayed that the orders sought in their application be granted.
8. The supporting affidavit sworn by David Onyango Mireri largely replicates the grounds contained in the application. For this reason, the court sees no reason for restating the same except to add that the respondents/applicants have annexed several annexures to the supporting affidavit. These annexures are: a copy of authority to plead marked DOM-1, a copy of the appellant’/respondents’ application dated 27th September 2024 marked DOM-2, photographs showing building material situate at the suit property marked DOM-3 and a copy of the judgment in Oyugis ELC Case no.26 of 2021.
The Response
9. The appellant/ respondents filed a replying affidavit dated 25th April 2025 and deponed that indeed, their application dated 27th September 2025 was compromised and that this court issued orders of maintained of status quo. However, they denied the allegation that they were in the process of commencing construction in the suit property and invited the respondent/appellant to prove these allegations.
10. The appellants/respondents also stated that they were in occupation of the suit property before the suit which is the subject of the instant appeal was instituted at the lower court. The doponed maintained that his family had established permanent structures on the suit property and stated that there is not new construction on the disputed parcel on the part that they occupy.
11. In addition to the foregoing, the appellants/respondents denied having entered into the suit property in 2005 and also stated that they have complied with the court order. On the contrary, they deponed that it is the respondents /applicants who have defied the court order by cutting don trees despite this court’s order directing that status quo be maintained. The appellants/respondents further contended that the respondents/applicants are in the process of commencing construction and annexed photograph of what they stated to be murram and building stones on the suit property in annexure marked EOA-03.
12. Lastly, the appellants/respondents deponed that the application is frivolous, scandalous, vexatious and marred with falsehoods and as such, the same should be dismissed with costs.
Submissions of the parties
13. The application was canvassed by way of written submissions. The respondents/applicants filed theirs dated 20th June 2025. They relied on the case of Efficient Dynamics & Supplies Limited v Gret Café Limited (Environment and Land Case E006) [2024] KEELC 773 (KLR) where the court established the conditions that must be established for a party to be found in contempt of court. These considerations are: whether the terms of the order were clear and unambiguous, whether the respondent had knowledge of the terms of the order, whether the respondent acted in breach of the terms of the order and whether the respondent’s conduct was deliberate.
14. The respondents/applicants maintained that the terms of the order were very clear and unambiguous in the sense that the order enjoined the parties not construct any new structures on the suit property as well as not planting perennial crops on the suit property. They further argued that the appellants /respondents were aware of the order and its terms and that this fact is captured in the appellant’s/ respondent’s replying affidavit at paragraph 8. As such, the respondents/applicants submitted that the only questions left for this court’s determination relate to whether the appellants/respondents are in breach of the terms of the contract and whether the appellants /respondents deliberately breached the terms of the said order.
15. The respondents/applicants relied on paragraph 4 of the affidavit in support of their application to argue that it was evident that the appellants/ respondents had indeed pile up construction materials on the suit property in readiness for construction.
16. The respondents/applicants further submitted that the appellants/respondents removed the above stated construction materials from the suit property when they learnt that the respondent/applicants had filed the instant application. They maintained that the appellants/respondents wiped away the evidence of their contempt of court such that one cannot at this point establish that they were in contempt. Nevertheless, the respondents/applicant argued that they had discharged their evidential burden of proof provided under Section 107 of the Evidence Act, having annexed photographic evidence showing the alleged contempt of court in the affidavit supporting their application.
17. As to whether the appellant’s/respondent’s actions in breaching the orders the order were deliberate, the respondent/applicants argued that the actions of the appellants/respondents were deliberate as they were aware of the court order issued by this court on 6th March 2025.
18. The appellant/respondents filed their submissions dated 11th June 2025 and vehemently opposed the respondent/applicant’s application. They relied on Gatharia Mutikika v Baharini Farm Limited [1985] to submit that the standard of proof applied in contempt of court cases is higher than the ordinary standard of proof applied in civil cases. They also cited Katsuri Limited v Kapurchand Depar Shan [2016] KEHC 6447 (KLR) to highlight the condition that must be met for the respondents/applicants to be said to have proved their case.
19. In addition to the foregoing, the appellants/ respondents stated they did not have notice of the order and placed relied on Shimmers Plaza limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) to argue that a party who contends that another had knowledge of a court order must demonstrate proper service of the said order to the court.
20. It was also the appellants’/respondents’ submission that the respondents /applicants had not demonstrated that they were on the verge on constructing a structure on the suit property contrary to the court order dated 6th March 2025. This, they argued was because the only evidence the respondent/applicants presented was a photograph of an old permanent structure alleged to have been built by the appellant/respondents.
21. The appellant/respondents relied on the testimony of the area chief who testified as to the status of the suit property before this court. They argued that the chief told the court that he visited the suit property in march and April 2025 and observed that there was a structure that had been built by the 1st appellant/respondent’s son in January 2025. They also submitted that the chief testified that there were remnants od bricks that had been made nearly two years ago. In the circumstances, the appellants/respondents argued that they were not in contempt of court, that the respondent/applicants had not proved their case and that the application the application should be dismissed with costs
Issues, analysis and determination
22. The main issue for determination in this application is whether the respondent/applicants have proved their case to the required standard. Equally, the question of who bears the costs of the application is also relevant.
23. Contempt of court has been defined in the been defined in the Black’s Dictionary (11th edition) as:
‘‘Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.”
24. The law on contempt of court in Kenya is set out in several statutes, including the Judicature Act as well as the various statutes establishing the various courts in our court system. The courts have also added their weight on this subject in various judicial pronouncements.
25. Section 29 of the Environment and Land Court Act empowers this court to punish contemnors and provides that:
Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.
26. Both parties pointed this court to precedents that set out the test for determining contempt of court. In addition to these decisions, the court also looked into other precedents regarding this matter. In Samuel M.N Mweru & others v The National Land Commission & 2 others, Nairobi (HC) Miscellaneous Civil Application No. 443 of 2017, the High Court determined as follows:
‘‘40. 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 willfulness 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.[46] Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand[47] who succinctly stated: "There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove 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’’.
27. I have carefully considered the application in its entirety, the response thereto, the submissions of the parties as well as the law. As to whether there was an order that was clear and unambiguous, I note that this court, on 6th March 2025 directed that status quo be maintained in the suit property and directed that parties should only grow seasonal crops therein. The court also allowed the parties to harvest their perennial crops and plant these (perennial crops no more). Moreover, the court directed that parties should not construct new structures on the suit property and that existing structures should not be demolished. Lastly, the court ordered that there should be no quarrying and excavation on the suit property.
28. As to whether the appellant/respondents were aware of this order, the court agrees with the respondent/applicants that the appellants /respondents admitted in their replying affidavit that indeed, the said order was issued by this court on 6 march 2025. They cannot now be heard to argue that they were not aware of the order. The said order was equally directed to both parties.
29. That said, what remains to be determined is whether the appellant respondents are in contempt of the said court order. As argued by the appellant/respondents, the standard of proof in civil contempt cases is above the ordinary civil standard of proof on a balance of probabilities and below the criminal law standard of proof beyond reasonable doubt.
30. The respondents/ applicants accuse the appellants/respondents of breach which is particularized as attempts to construct a structure on the suit property, which attempts are said to include brick making and bringing construction material on the suit property. The appellant/respondents deny these accusations and instead blame the respondent/applicants of contempt.
31. More importantly, the respondent /applicants blame the appellants /respondents of obliterating evidence of the said contempt when they learnt about the instant application. The effect of such obliteration of evidence as was argued by the respondent/applicants is that one cannot discern the appellants’/respondents’’ contemptuous acts now by looking at the suit land.
32. This court had the opportunity of hearing the area assistant chief whose testimony was that there is a structure that was put up by the 1st appellant’s/respondent’s son in January 2025. He also mentioned that there were remnants of bricks which, upon investigation, he established had been made about two weeks prior to his visit to the suit land in April, 2025.
33. After analyzing the evidence submitted before this court, I am inclined to find that the Respondent/applicants have not proved their case to the required standard. This is so because they admitted that there is no evidence of contempt at the moment, the same having been wiped away by the appellants/respondents. Equally, the assistant chief’s evidence is to the effect that the 1st appellant’s /respondent’s son built a structure on the suit property in January 2025, yet the orders in question were issued on March 6th 2025.
34. Be that as it may, this parting shot should go reminds the parties of the significance of adhering the court orders to the administration of justice and a caution to any who may be tempted think that courts do not have teeth to bite or that every day is an escape date. Let I be known to the parties herein and all and sundry that any breach its orders will be punished severely for the contempt of court that will ensue, as per the law. Further, this court notes there may have been attempts to breach the orders issued on 6th March 2025 and the application failed for failure of the applicants to present the facts in a clear and precise manner to the required standard. It therefore directs that if any of the parties placed any building materials on the others’ portions of the suit property, that is to say on the adverse party’s respective portions of current occupation, the same should not be removed and, should remain the property of the party on whose portion of occupation the same has been placed. Removal of the material by the party who (wrongly, deliberately or intentionally) placed the material on such portion (whether with intent to disobey the court orders or not) and not by the occupant shall constitute contempt of court and shall be subject to punishment.
35. Having established that the respondent/applicants have not proved their complaint, the application dated 14th April 2025 is hereby disallowed. Mention on 22nd January 2026 for further directions.
36. Each party shall bear its own costs.
37. Orders accordingly.
Ruling dated, signed and delivered virtually via the Teams Platform this 9th December 2025.
Hon. Dr. iur Nyagaka,
Judge
In the presence of,
Mr. Akira Advocate holding brief for Nyanga for 2nd Appellant
Ms. Kimberly Advocate for 1st and 2nd Respondent
Mr. Oguso for 1st Appellant, absent