A. Introduction
1. The applicants have moved the court by way of a Notice of Motion dated 8 th October, 2025, brought under Article 10 and Article 159 of the C.O.K and Sections 5 of the Judicature Act, for orders that one MOHAMED AMIN and DETECTIVE SERGEANT NICOLAUS OSURI OTIENO be cited for contempt of court and punished accordingly for wilful disobedience of the orders issued by this Honourable Court on 24 th July 2025.
B. Applicants’ case
2. The application is propped by the grounds on its face and the affidavit of one Naomi Kinuva, the 4 th applicant herein. Summarily, she deposed that this court in its Ruling delivered on 24 th July, 2025 issued orders compellingthe Respondent to release to the 1st Applicant the original title deed in respect of L.R. No. 287 Section V South East of Mazeras (hereinafter “the subject property”.
3. That, on the material day State Counsel from the Honourable Attorney General’s Chambers, who appeared for the Respondent, was present in court when the ruling was delivered and even sought a stay of the orders, which request was declined by the court. Consequently, the applicants thereafter extracted the order, and effected service upon the Respondent directly and through the Attorney General’s Chambers but despite clear service and full knowledge of the court order, the Respondent has deliberately refused to release the title deed, as confirmed by the Applicants’ letters dated 19 th August 2025 and 15 th September 2025.
C. Respondents’ case
4. The application is opposed by way of a Replying Affidavit sworn by one Detective Sergeant Nicolaus Osuri Otieno, attached at the DCI Headquarters, Land Fraud Investigations Unit.
5. He summarily deposed that the Respondent being dissatisfied with the Ruling of this Court on 24 th July, 2025 preferred an appeal, and equally, being apprehensive that the impugned title to the subject property which is an alleged exhibit in ongoing criminal investigations and filed an application under Certificate of Urgency dated 21 st August, 2025, for stay of the impugned Ruling and orders being Civil Application E079 of 2025 Director of Criminal Investigations & another vs Muturi Gakuo & Kibara Advocates & 3 others a t the Court of Appeal.
6. That, the applicants are guilty of material non-disclosure of the true status of the matter at the Court of Appeal, as the matter was certified as urgent and was coming up for Hearing on 27 th October, 2025 (as at the time of filing the response).
7. Further, that the citation of the names of MOHAMED AMIN presumably the Director of Criminal Investigations and Detective Sgt. NICOLAUS OSURI OTIENO, is malicious, discriminatory and unjustified as without prejudice, there has been more investigators relating to the matter.
D. Written Submissions
8. The applicants contended that the objective of contempt proceedings is not to punish for its own sake, but to ensure obedience to court orders and preservation of the rule of law. In this instance, they argued that despite the unequivocal nature of the orders issued and actual knowledge of the same by the respondents, their continued withholding of the title deed, demonstrates open defiance and deliberate contempt of this Honourable Court. In aid of their case, they relied on the authorities in Wekesa & 2 others v Munialo (Civil Appeal 28 of 2019) [2025] KECA 679 (KLR) (11 April 2025) (Judgment), Teachers Service Commission v Kenya National Union of Techers & 2 Others [2013] eKLR.
9. The respondents submitted that the applicants have not demonstrated that the alleged contemnors are in actual custody and possession of the impugned documents and whether indeed they were served with the said orders in person.
10. Further, it has not beebn proved that the respondents acted deliberately and willfully disobeyed court orders, therefore the instant application is incompetent and an abuse of court process. They cited the authorities in Mutitika vs Baharini Farm Limited (1985) KLR 227, Justus Kariuki Mate & another vs Martin Nyaga Wambora & another C.C No.24 of 2014, Sam Nyamweya & 3 others vs KPL Ltd & 2 others (2015)eklr, to the end that the application has not met the threshold to warrant the orders sought.
E. Analysis and Determination
11. To my mind, the sole issue herein is whether the Respondent’s failure and/or refusal to comply with the court order issued on 24 th July 2025 amounts and if it amounts to contempt of court.
12. The Black’s Law Dictionary 9 th Edition, defines contempt as:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”
13. Simply put, contempt is conduct that impairs the fair and efficient administration of justice. In fact, the reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts.
14. Due to the repeal of the Contempt of Court Act , 2016, [ see The Kenya Human Rights Commission vs Attorney General & Another [2018] eKLR] the substantive law governing contempt proceedings is the Judicature Act . Section 5 of the Act provides as follows:
“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.”
15. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove wilful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, that:
“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt… The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.
16. Dealing with the question of contempt in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828 , Ibrahim, J. (as he then was), underscored the importance of obeying court orders, stating:
It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void . (emphasis)
17. In order to succeed in contempt proceedings, the applicant has to prove that the terms of the order were clear, unambiguous and binding on the Respondent; knowledge of these terms by the Respondent; failure by the Respondent to comply with the terms of the order; and deliberate conduct by the Respondent. There cannot be deliberate and wilful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and wilfully disobeyed it.
18. As per the first test, it is not in doubt that orders of this court from its Ruling delivered on 24 th July, 2025 were clear, precise and unambiguous to the end that the Respondent does release to the 1 st Applicant the original title deed in respect of the subject property herein.
19. Moving to the aspect of the knowledge of the orders, the applicants demonstrated that State Counsel from the A.G’s Chambers, who appeared for the Respondent, was present in court when the ruling was delivered. Further, the orders were extracted and served upon the Respondent directly and through the Attorney General’s Chambers. As per the Affidavit of Service on record by the applicants sworn on 13 th August, 2025 by Misoa Mutuse, a licensed court process server, evidences that the orders were duly served to the Officer in charge-Legal Registry at the Directorate of Criminal Investigations, situated at Mazingira complex, Kiambu-Road, Nairobi.
20. For context, this court takes judicial notice that the 1 st intended contemnor, Mohamed Amin is the current Director, the Directorate of Criminal Investigations (DCI). As to the 2 nd intended contemnor, Detective Sergeant Nicolaus Osuri Otieno, he is an investigator attached to Land Fraud Investigation Unit at the DCI, Nairobi, whom by privilege of the material pleadings herein was the deponent and the officer authorized as holder of a Search Warrant to search for and seize the original title to the subject property herein in Mombasa C.M. Misc. E174 OF 2025, which impugned proceedings and orders thereto primarily birthed the instant case.
21. Having thus said, this court is not convinced as to the knowledge of the orders by the 1 st contemnor. However, in so far as the 2 nd contemnor is concerned, it is vivid that he was and remains fully aware of the said orders. In fact, by his own admission as the deponent in opposition of the instant application, he deposed categorically that the Respondent being dissatisfied with the subject Ruling/Orders herein preferred an appeal, and coupled with an application under Certificate of Urgency, sought a stay of the impugned Ruling and orders on the pretext that they were apprehensive that the impugned title to the subject property, an alleged exhibit in ongoing criminal investigations would be at imminent risk of destruction by the applicants.
22. I needlessly reiterate that the uncompromising nature of the obligation to obey orders made by court of competent jurisdiction by every person against whom the same is made to extends even to cases where the person affected by the order believes it to be irregular or void.
23. For what is worth, just because the Respondent preferred an Appeal against the impugned subject Ruling/Orders does not vitiate the respondent’s obligation to obey and abide by the orders unless the same is discharged. The Respondent’s discontentment and divergence of the impugned Ruling is no justification to disobey the same or impede its actualization.
24. The 2 nd contemnor therefore has deliberately disobeyed this court’s order and this cannot be tolerated or condoned. Orders are made to be obeyed or else we might as well plunge our society into chaos.
25. In the foregoing, this court finds merit in the application herein, to the extent held hereinabove. Accordingly, Detective Sergeant Nicolaus Osuri Otieno, herein the contemnor, is hereby ordered to show cause within fourteen (14) days why he should not be committed to jail for up to six (6) months for willfully disobeying this court orders of 24 th July, 2025.
26. Notice to Show Cause to issue upon the contemnor, Detective Sergeant Nicolaus Osuri Otieno to appear when the case shall be Mentioned on 26th January, 2026.
27. Costs of the application shall be borne by the Respondent.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18th…...day of….December ..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).MR GAKUO
FOR THE RESPONDENTS MR KIMEI AND MR KITONYI
COURT ASSISTANT BEBORA
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1. The applicants have moved the court by way of a Notice of Motion dated 8 th October, 2025, brought under Article 10 and Article 159 of the C.O.K and Sections 5 of the Judicature Act, for orders that one MOHAMED AMIN and DETECTIVE SERGEANT NICOLAUS OSURI OTIENO be cited for contempt of court and punished accordingly for wilful disobedience of the orders issued by this Honourable Court on 24 th July 2025.
B. Applicants’ case
2. The application is propped by the grounds on its face and the affidavit of one Naomi Kinuva, the 4 th applicant herein. Summarily, she deposed that this court in its Ruling delivered on 24 th July, 2025 issued orders compellingthe Respondent to release to the 1st Applicant the original title deed in respect of L.R. No. 287 Section V South East of Mazeras (hereinafter “the subject property”.
3. That, on the material day State Counsel from the Honourable Attorney General’s Chambers, who appeared for the Respondent, was present in court when the ruling was delivered and even sought a stay of the orders, which request was declined by the court. Consequently, the applicants thereafter extracted the order, and effected service upon the Respondent directly and through the Attorney General’s Chambers but despite clear service and full knowledge of the court order, the Respondent has deliberately refused to release the title deed, as confirmed by the Applicants’ letters dated 19 th August 2025 and 15 th September 2025.
C. Respondents’ case
4. The application is opposed by way of a Replying Affidavit sworn by one Detective Sergeant Nicolaus Osuri Otieno, attached at the DCI Headquarters, Land Fraud Investigations Unit.
5. He summarily deposed that the Respondent being dissatisfied with the Ruling of this Court on 24 th July, 2025 preferred an appeal, and equally, being apprehensive that the impugned title to the subject property which is an alleged exhibit in ongoing criminal investigations and filed an application under Certificate of Urgency dated 21 st August, 2025, for stay of the impugned Ruling and orders being Civil Application E079 of 2025 Director of Criminal Investigations & another vs Muturi Gakuo & Kibara Advocates & 3 others a t the Court of Appeal.
6. That, the applicants are guilty of material non-disclosure of the true status of the matter at the Court of Appeal, as the matter was certified as urgent and was coming up for Hearing on 27 th October, 2025 (as at the time of filing the response).
7. Further, that the citation of the names of MOHAMED AMIN presumably the Director of Criminal Investigations and Detective Sgt. NICOLAUS OSURI OTIENO, is malicious, discriminatory and unjustified as without prejudice, there has been more investigators relating to the matter.
D. Written Submissions
8. The applicants contended that the objective of contempt proceedings is not to punish for its own sake, but to ensure obedience to court orders and preservation of the rule of law. In this instance, they argued that despite the unequivocal nature of the orders issued and actual knowledge of the same by the respondents, their continued withholding of the title deed, demonstrates open defiance and deliberate contempt of this Honourable Court. In aid of their case, they relied on the authorities in Wekesa & 2 others v Munialo (Civil Appeal 28 of 2019) [2025] KECA 679 (KLR) (11 April 2025) (Judgment), Teachers Service Commission v Kenya National Union of Techers & 2 Others [2013] eKLR.
9. The respondents submitted that the applicants have not demonstrated that the alleged contemnors are in actual custody and possession of the impugned documents and whether indeed they were served with the said orders in person.
10. Further, it has not beebn proved that the respondents acted deliberately and willfully disobeyed court orders, therefore the instant application is incompetent and an abuse of court process. They cited the authorities in Mutitika vs Baharini Farm Limited (1985) KLR 227, Justus Kariuki Mate & another vs Martin Nyaga Wambora & another C.C No.24 of 2014, Sam Nyamweya & 3 others vs KPL Ltd & 2 others (2015)eklr, to the end that the application has not met the threshold to warrant the orders sought.
E. Analysis and Determination
11. To my mind, the sole issue herein is whether the Respondent’s failure and/or refusal to comply with the court order issued on 24 th July 2025 amounts and if it amounts to contempt of court.
12. The Black’s Law Dictionary 9 th Edition, defines contempt as:
“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.”
13. Simply put, contempt is conduct that impairs the fair and efficient administration of justice. In fact, the reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts.
14. Due to the repeal of the Contempt of Court Act , 2016, [ see The Kenya Human Rights Commission vs Attorney General & Another [2018] eKLR] the substantive law governing contempt proceedings is the Judicature Act . Section 5 of the Act provides as follows:
“(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.”
15. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove wilful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, that:
“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt… The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.
16. Dealing with the question of contempt in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828 , Ibrahim, J. (as he then was), underscored the importance of obeying court orders, stating:
It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void . (emphasis)
17. In order to succeed in contempt proceedings, the applicant has to prove that the terms of the order were clear, unambiguous and binding on the Respondent; knowledge of these terms by the Respondent; failure by the Respondent to comply with the terms of the order; and deliberate conduct by the Respondent. There cannot be deliberate and wilful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and wilfully disobeyed it.
18. As per the first test, it is not in doubt that orders of this court from its Ruling delivered on 24 th July, 2025 were clear, precise and unambiguous to the end that the Respondent does release to the 1 st Applicant the original title deed in respect of the subject property herein.
19. Moving to the aspect of the knowledge of the orders, the applicants demonstrated that State Counsel from the A.G’s Chambers, who appeared for the Respondent, was present in court when the ruling was delivered. Further, the orders were extracted and served upon the Respondent directly and through the Attorney General’s Chambers. As per the Affidavit of Service on record by the applicants sworn on 13 th August, 2025 by Misoa Mutuse, a licensed court process server, evidences that the orders were duly served to the Officer in charge-Legal Registry at the Directorate of Criminal Investigations, situated at Mazingira complex, Kiambu-Road, Nairobi.
20. For context, this court takes judicial notice that the 1 st intended contemnor, Mohamed Amin is the current Director, the Directorate of Criminal Investigations (DCI). As to the 2 nd intended contemnor, Detective Sergeant Nicolaus Osuri Otieno, he is an investigator attached to Land Fraud Investigation Unit at the DCI, Nairobi, whom by privilege of the material pleadings herein was the deponent and the officer authorized as holder of a Search Warrant to search for and seize the original title to the subject property herein in Mombasa C.M. Misc. E174 OF 2025, which impugned proceedings and orders thereto primarily birthed the instant case.
21. Having thus said, this court is not convinced as to the knowledge of the orders by the 1 st contemnor. However, in so far as the 2 nd contemnor is concerned, it is vivid that he was and remains fully aware of the said orders. In fact, by his own admission as the deponent in opposition of the instant application, he deposed categorically that the Respondent being dissatisfied with the subject Ruling/Orders herein preferred an appeal, and coupled with an application under Certificate of Urgency, sought a stay of the impugned Ruling and orders on the pretext that they were apprehensive that the impugned title to the subject property, an alleged exhibit in ongoing criminal investigations would be at imminent risk of destruction by the applicants.
22. I needlessly reiterate that the uncompromising nature of the obligation to obey orders made by court of competent jurisdiction by every person against whom the same is made to extends even to cases where the person affected by the order believes it to be irregular or void.
23. For what is worth, just because the Respondent preferred an Appeal against the impugned subject Ruling/Orders does not vitiate the respondent’s obligation to obey and abide by the orders unless the same is discharged. The Respondent’s discontentment and divergence of the impugned Ruling is no justification to disobey the same or impede its actualization.
24. The 2 nd contemnor therefore has deliberately disobeyed this court’s order and this cannot be tolerated or condoned. Orders are made to be obeyed or else we might as well plunge our society into chaos.
25. In the foregoing, this court finds merit in the application herein, to the extent held hereinabove. Accordingly, Detective Sergeant Nicolaus Osuri Otieno, herein the contemnor, is hereby ordered to show cause within fourteen (14) days why he should not be committed to jail for up to six (6) months for willfully disobeying this court orders of 24 th July, 2025.
26. Notice to Show Cause to issue upon the contemnor, Detective Sergeant Nicolaus Osuri Otieno to appear when the case shall be Mentioned on 26th January, 2026.
27. Costs of the application shall be borne by the Respondent.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18th…...day of….December ..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).MR GAKUO
FOR THE RESPONDENTS MR KIMEI AND MR KITONYI
COURT ASSISTANT BEBORA
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