A. Introduction
1. Before the court is a Notice of Motion dated 20 th April 2026, brought under Order 40 Rule 3 of the Civil Procedure Rules, Section 5 of the Judicature Act, and Sections 1A and 3A of the Civil Procedure Act. The Applicant seeks orders citing the Respondent for contempt of the injunctive orders issued on 18 th December 2024, committing him to civil jail for six months or such period as the court may deem fit and awarding the costs of the application to her.
2. The application is supported by the Applicant's affidavits sworn on 20 th April 2026 and 4 th June 2026. It is opposed by the Respondent through his replying affidavit sworn on 25 th May 2026. Both parties filed written submissions.
3. This ruling is confined to whether the Respondent should be punished for contempt of the specific orders issued on 18th December 2024. It does not determine the substantive dispute concerning the matrimonial property, which remains pending.
B. The Orders Alleged to Have Been Disobeyed
4. On 18 th December 2024, this Court (Hon. Ong'udi, L.J.) issued a temporary injunction restraining the Respondent, his agents, servants and any person acting on his behalf, pending the hearing and determination of the suit, from subdividing, selling or transferring the parcels known as Bahati/Engorusha Block 2/131 (Mukera) and Bahati/Engorusha Block 2/179 (Mukera); undertaking any developments on either parcel and cutting down or selling the trees planted on Block 2/131 without the Applicant's written consent. The order carried a penal notice and was formally issued on 21 st January 2025, when it was also served by email upon the counsel then on record for the Respondent.
C. The Applicant's Case
5. The Applicant deposes that, despite the Respondent's knowledge of the order, he has continued to disobey it. She states that, on various occasions, she visited the matrimonial home on Block 2/179 and found an ongoing construction of a second dwelling, which she photographed at different stages between March and May 2026.
6. She further states that portions of Block 2/131 continued to be sold to third parties who were developing the land and exhibited photographs showing a church structure under construction on the parcel between March and April 2026. She also alleges that trees were felled or sold without her consent, livestock and a greenhouse she had established were disposed of or destroyed and a stranger and her children were installed in the matrimonial home, exposing her to threats to her safety.
7. In her further affidavit, the Applicant clarifies that she consented to the sale of two specific portions of Block 2/131, with the proceeds intended for the family's benefit. She contends, however, that the Respondent subsequently subdivided the entire parcel into thirty-eight
portions and marketed them beyond the scope of her consent. She further states that the Respondent instituted separate proceedings in Nakuru Miscellaneous CMELC E235 of 2024 against the Land Registrar, seeking issuance of title deeds despite the restraining orders. 8. She also alleges that he represented to prospective purchasers that this suit had been dismissed, thereby encouraging them to proceed with development.
D. The Respondent's Case
9. The Respondent denies disobeying the order and contends that the Applicant has not laid a proper foundation for her allegations, having produced no photographs predating the order against which the recent photographs could be compared. He maintains that the parcels have remained undisturbed since 18 th December 2024 and that none of the acts complained of occurred after that date.
10. He relies on two land sale agreements, dated 5 th August 2019 and 3 rd October 2019, through which portions of the land were sold to a third party with the Applicant's knowledge and signature as a witness. 11. He also relies on a further agreement dated 3 rd February 2020, by which a portion was sold to Christian Community Church & Services. In addition, he exhibits a Land Control Board consent for subdivision of Block 2/131 into thirty-eight portions and an accompanying mutation form, recording survey work undertaken in July 2024 and certification by the Government Surveyor on 19 th August 2024, both predating the injunction. He therefore submits that the sale to the church and the underlying subdivision predated the order and cannot found a contempt charge. Regarding the allegations concerning the trees, livestock, greenhouse and the stranger residing at the matrimonial home, he denies knowledge of the matters and puts the Applicant to strict proof.
E. Issues for Determination
12. The following issues arise for determination:-
(i) whether the terms of the order of 18 th December 2024 were clear, unambiguous, and binding on the Respondent
(ii) whether the Respondent had notice or knowledge of the order
(iii) whether the Respondent, or persons acting with his authority or acquiescence breached the order and
(iv) if so, whether the breach was deliberate, and what consequence should follow.
13. Civil contempt in this jurisdiction is grounded in Section 5(1) of the Judicature Act, which confers upon this court the same power to punish for contempt. Although the Contempt of Court Act, 2016 was declared unconstitutional, that decision does not oust the court's jurisdiction under Section 5 of the Judicature Act or its inherent jurisdiction to punish for contempt.
14. The applicable standard of proof is higher than the ordinary civil standard of a balance of probabilities, though it does not equate to proof beyond reasonable doubt. This reflects the quasi-penal nature of contempt proceedings and the liberty interest at stake. Before a party
may be held in contempt, it must be established that the order was clear and binding; that the alleged contemnor had notice or knowledge of it; that he breached its terms; and that the breach was deliberate rather than accidental.
15. Where a litigant is represented, notice communicated to counsel is generally treated as notice to the litigant.
16. Contempt proceedings are intended to preserve the efficacy of court orders and by extension, the rule of law. They are not meant to gratify a litigant or vindicate the dignity of the presiding judge. Because committal to civil jail is a serious sanction, the court must approach the remedy with circumspection and reserve it for cases where the evidence establishes the alleged breach to the requisite standard.
F. Determination and Analysis
17. Neither party disputes that the order of 18 th December 2024 was clear and binding on the Respondent. As to knowledge, the order was made in the presence of his advocate and was subsequently served by email upon the firm then on record. Further, the Respondent's own conduct in instituting proceedings against the Land Registrar to obtain title deeds for the parcels under injunction demonstrates his knowledge of the restraint. The first two elements are therefore satisfied.
18. Development on Block 2/179. The photographs exhibited by the Applicant, dated 28 th March, 2 nd April and 28 th May 2026, depict the same structure at successive stages, from block walls and roof trusses to a completed roof. The photographs were taken more than a year after the injunction. The Respondent's assertion that the development predated the order is unsupported by any evidence before the court. No photograph, receipt, building permit or other independent record places the construction, or any part of it, before December 2024.
19. In the circumstances, the bare denial does not displace the dated photographic evidence. I therefore find that construction on Block 2/179 continued after the injunction and constituted a breach of the order restraining developments on that parcel.
20. Development on Block 2/131 by third parties. The photographs of the church structure show construction on 26 th March 2026 and a fully roofed structure, with crops planted around it, by 20 th April 2026. The Respondent does not dispute that construction occurred during that period but relies on the sale agreement dated 3 rd February 2020 to contend that the development predated the injunction.
21. That submission confuses the sale of the land with subsequent construction. The 2020 agreement establishes the date of the sale; it does not establish when construction commenced. The photographic evidence places the construction after the injunction. I am therefore satisfied that the construction on Block 2/131 occurred after the injunction and on the Applicant's evidence that the Respondent encouraged and reassured the purchaser to proceed notwithstanding the order, fell within the prohibition against undertaking developments on the parcel.
22. Subdivision and sale of Block 2/131. This aspect requires greater caution. The 2019 and 2020 sale agreements and the Land Control Board consent authorizing subdivision into thirty-eight portions all predate 18 th December 2024. The Applicant also acknowledges consenting to at least some of the transactions. Her complaint concerns the extent of that consent and the Respondent's alleged subsequent steps to register the full subdivision after the injunction took effect. The mutation form is relevant in this regard because Part D, reserved for registration by the Land Registrar, is blank. The record therefore does not establish that the subdivision had been perfected into separate titles by December 2024. If the Respondent subsequently took active steps to complete the registration, including through the proceedings against the Land Registrar referred to in the further affidavit, such conduct would fall within the restraint against subdividing the land. However, the Applicant did not exhibit the pleadings, filing date or current status of those proceedings, nor did she provide dated evidence of sales concluded after December 2024. 23. On the material before the court, I am not satisfied to the requisite standard that a fresh act of subdivision or sale, as distinct from the pursuit of an incomplete pre-injunction transaction,has been established. This limb therefore fails.
24.The allegation that trees were cut or sold without the Applicant's consent is unsupported by photographs, particulars of their location, quantity or timing. It rests principally on an assertion in the supporting affidavit and is met by the Respondent's denial. Given the
5 applicable standard of proof, the allegation is insufficient to sustain a finding of contempt.
This limb therefore fails.
26. Matters outside the scope of the order. The allegations concerning the sale of livestock, demolition of a greenhouse, the presence of another woman and her children at the matrimonial home and threats to the Applicant's safety are troubling if true. However, none falls within the specific conduct restrained by the order of 18 th December 2024.
27. A finding of contempt must be confined to the terms of the order alleged to have been disobeyed and cannot extend to every grievance between the parties.
28. These matters may be addressed in the main suit or, where appropriate, through a separate application seeking
protective orders. I therefore make no finding on them in these proceedings.
29. Having found that development continued on both parcels after the Respondent became aware of the injunction, the continued construction cannot reasonably be regarded as inadvertent. The sustained nature of the activity over several months, together with the
Applicant's uncontroverted evidence that purchasers were assured that the suit had been resolved, supports a finding of deliberate disobedience. I therefore find the established breaches to have been deliberate.
G. Disposition
30. For the foregoing reasons, I find the Respondent in contempt of paragraph (b) of the order of 18 th December 2024, to the extent of the continuing construction on Block 2/179 and the development on Block 2/131 after the date of the order. I do not find contempt established in respect of the subdivision or sale of the land, the cutting of trees, or the other matters raised, either for want of sufficient proof or, in the case of the latter matters, for want of a nexus to the order.
31. In the end this court allows the motion dated 20/4/2026 giving rise to issuance of the following orders:
(a) The Respondent is hereby found to be in contempt of the order of 18 th December 2024, to the limited extent set out hereinabove.
(b) The Respondent shall bear the costs of this application.
(c) This case is fixed on 8 th October, 2026 for mitigation to determine the appropriate sentence.
Orders accordingly.
Dated, signed and delivered this 1 st day of September, 2026 at Nakuru.
J. K. SERGON
JUDGE
In presence of:
Rutoh C/A
Kimaru for Respondent
Miss Langat for the Applicant
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1. Before the court is a Notice of Motion dated 20 th April 2026, brought under Order 40 Rule 3 of the Civil Procedure Rules, Section 5 of the Judicature Act, and Sections 1A and 3A of the Civil Procedure Act. The Applicant seeks orders citing the Respondent for contempt of the injunctive orders issued on 18 th December 2024, committing him to civil jail for six months or such period as the court may deem fit and awarding the costs of the application to her.
2. The application is supported by the Applicant's affidavits sworn on 20 th April 2026 and 4 th June 2026. It is opposed by the Respondent through his replying affidavit sworn on 25 th May 2026. Both parties filed written submissions.
3. This ruling is confined to whether the Respondent should be punished for contempt of the specific orders issued on 18th December 2024. It does not determine the substantive dispute concerning the matrimonial property, which remains pending.
B. The Orders Alleged to Have Been Disobeyed
4. On 18 th December 2024, this Court (Hon. Ong'udi, L.J.) issued a temporary injunction restraining the Respondent, his agents, servants and any person acting on his behalf, pending the hearing and determination of the suit, from subdividing, selling or transferring the parcels known as Bahati/Engorusha Block 2/131 (Mukera) and Bahati/Engorusha Block 2/179 (Mukera); undertaking any developments on either parcel and cutting down or selling the trees planted on Block 2/131 without the Applicant's written consent. The order carried a penal notice and was formally issued on 21 st January 2025, when it was also served by email upon the counsel then on record for the Respondent.
C. The Applicant's Case
5. The Applicant deposes that, despite the Respondent's knowledge of the order, he has continued to disobey it. She states that, on various occasions, she visited the matrimonial home on Block 2/179 and found an ongoing construction of a second dwelling, which she photographed at different stages between March and May 2026.
6. She further states that portions of Block 2/131 continued to be sold to third parties who were developing the land and exhibited photographs showing a church structure under construction on the parcel between March and April 2026. She also alleges that trees were felled or sold without her consent, livestock and a greenhouse she had established were disposed of or destroyed and a stranger and her children were installed in the matrimonial home, exposing her to threats to her safety.
7. In her further affidavit, the Applicant clarifies that she consented to the sale of two specific portions of Block 2/131, with the proceeds intended for the family's benefit. She contends, however, that the Respondent subsequently subdivided the entire parcel into thirty-eight
portions and marketed them beyond the scope of her consent. She further states that the Respondent instituted separate proceedings in Nakuru Miscellaneous CMELC E235 of 2024 against the Land Registrar, seeking issuance of title deeds despite the restraining orders. 8. She also alleges that he represented to prospective purchasers that this suit had been dismissed, thereby encouraging them to proceed with development.
D. The Respondent's Case
9. The Respondent denies disobeying the order and contends that the Applicant has not laid a proper foundation for her allegations, having produced no photographs predating the order against which the recent photographs could be compared. He maintains that the parcels have remained undisturbed since 18 th December 2024 and that none of the acts complained of occurred after that date.
10. He relies on two land sale agreements, dated 5 th August 2019 and 3 rd October 2019, through which portions of the land were sold to a third party with the Applicant's knowledge and signature as a witness. 11. He also relies on a further agreement dated 3 rd February 2020, by which a portion was sold to Christian Community Church & Services. In addition, he exhibits a Land Control Board consent for subdivision of Block 2/131 into thirty-eight portions and an accompanying mutation form, recording survey work undertaken in July 2024 and certification by the Government Surveyor on 19 th August 2024, both predating the injunction. He therefore submits that the sale to the church and the underlying subdivision predated the order and cannot found a contempt charge. Regarding the allegations concerning the trees, livestock, greenhouse and the stranger residing at the matrimonial home, he denies knowledge of the matters and puts the Applicant to strict proof.
E. Issues for Determination
12. The following issues arise for determination:-
(i) whether the terms of the order of 18 th December 2024 were clear, unambiguous, and binding on the Respondent
(ii) whether the Respondent had notice or knowledge of the order
(iii) whether the Respondent, or persons acting with his authority or acquiescence breached the order and
(iv) if so, whether the breach was deliberate, and what consequence should follow.
13. Civil contempt in this jurisdiction is grounded in Section 5(1) of the Judicature Act, which confers upon this court the same power to punish for contempt. Although the Contempt of Court Act, 2016 was declared unconstitutional, that decision does not oust the court's jurisdiction under Section 5 of the Judicature Act or its inherent jurisdiction to punish for contempt.
14. The applicable standard of proof is higher than the ordinary civil standard of a balance of probabilities, though it does not equate to proof beyond reasonable doubt. This reflects the quasi-penal nature of contempt proceedings and the liberty interest at stake. Before a party
may be held in contempt, it must be established that the order was clear and binding; that the alleged contemnor had notice or knowledge of it; that he breached its terms; and that the breach was deliberate rather than accidental.
15. Where a litigant is represented, notice communicated to counsel is generally treated as notice to the litigant.
16. Contempt proceedings are intended to preserve the efficacy of court orders and by extension, the rule of law. They are not meant to gratify a litigant or vindicate the dignity of the presiding judge. Because committal to civil jail is a serious sanction, the court must approach the remedy with circumspection and reserve it for cases where the evidence establishes the alleged breach to the requisite standard.
F. Determination and Analysis
17. Neither party disputes that the order of 18 th December 2024 was clear and binding on the Respondent. As to knowledge, the order was made in the presence of his advocate and was subsequently served by email upon the firm then on record. Further, the Respondent's own conduct in instituting proceedings against the Land Registrar to obtain title deeds for the parcels under injunction demonstrates his knowledge of the restraint. The first two elements are therefore satisfied.
18. Development on Block 2/179. The photographs exhibited by the Applicant, dated 28 th March, 2 nd April and 28 th May 2026, depict the same structure at successive stages, from block walls and roof trusses to a completed roof. The photographs were taken more than a year after the injunction. The Respondent's assertion that the development predated the order is unsupported by any evidence before the court. No photograph, receipt, building permit or other independent record places the construction, or any part of it, before December 2024.
19. In the circumstances, the bare denial does not displace the dated photographic evidence. I therefore find that construction on Block 2/179 continued after the injunction and constituted a breach of the order restraining developments on that parcel.
20. Development on Block 2/131 by third parties. The photographs of the church structure show construction on 26 th March 2026 and a fully roofed structure, with crops planted around it, by 20 th April 2026. The Respondent does not dispute that construction occurred during that period but relies on the sale agreement dated 3 rd February 2020 to contend that the development predated the injunction.
21. That submission confuses the sale of the land with subsequent construction. The 2020 agreement establishes the date of the sale; it does not establish when construction commenced. The photographic evidence places the construction after the injunction. I am therefore satisfied that the construction on Block 2/131 occurred after the injunction and on the Applicant's evidence that the Respondent encouraged and reassured the purchaser to proceed notwithstanding the order, fell within the prohibition against undertaking developments on the parcel.
22. Subdivision and sale of Block 2/131. This aspect requires greater caution. The 2019 and 2020 sale agreements and the Land Control Board consent authorizing subdivision into thirty-eight portions all predate 18 th December 2024. The Applicant also acknowledges consenting to at least some of the transactions. Her complaint concerns the extent of that consent and the Respondent's alleged subsequent steps to register the full subdivision after the injunction took effect. The mutation form is relevant in this regard because Part D, reserved for registration by the Land Registrar, is blank. The record therefore does not establish that the subdivision had been perfected into separate titles by December 2024. If the Respondent subsequently took active steps to complete the registration, including through the proceedings against the Land Registrar referred to in the further affidavit, such conduct would fall within the restraint against subdividing the land. However, the Applicant did not exhibit the pleadings, filing date or current status of those proceedings, nor did she provide dated evidence of sales concluded after December 2024. 23. On the material before the court, I am not satisfied to the requisite standard that a fresh act of subdivision or sale, as distinct from the pursuit of an incomplete pre-injunction transaction,has been established. This limb therefore fails.
24.The allegation that trees were cut or sold without the Applicant's consent is unsupported by photographs, particulars of their location, quantity or timing. It rests principally on an assertion in the supporting affidavit and is met by the Respondent's denial. Given the
5 applicable standard of proof, the allegation is insufficient to sustain a finding of contempt.
This limb therefore fails.
26. Matters outside the scope of the order. The allegations concerning the sale of livestock, demolition of a greenhouse, the presence of another woman and her children at the matrimonial home and threats to the Applicant's safety are troubling if true. However, none falls within the specific conduct restrained by the order of 18 th December 2024.
27. A finding of contempt must be confined to the terms of the order alleged to have been disobeyed and cannot extend to every grievance between the parties.
28. These matters may be addressed in the main suit or, where appropriate, through a separate application seeking
protective orders. I therefore make no finding on them in these proceedings.
29. Having found that development continued on both parcels after the Respondent became aware of the injunction, the continued construction cannot reasonably be regarded as inadvertent. The sustained nature of the activity over several months, together with the
Applicant's uncontroverted evidence that purchasers were assured that the suit had been resolved, supports a finding of deliberate disobedience. I therefore find the established breaches to have been deliberate.
G. Disposition
30. For the foregoing reasons, I find the Respondent in contempt of paragraph (b) of the order of 18 th December 2024, to the extent of the continuing construction on Block 2/179 and the development on Block 2/131 after the date of the order. I do not find contempt established in respect of the subdivision or sale of the land, the cutting of trees, or the other matters raised, either for want of sufficient proof or, in the case of the latter matters, for want of a nexus to the order.
31. In the end this court allows the motion dated 20/4/2026 giving rise to issuance of the following orders:
(a) The Respondent is hereby found to be in contempt of the order of 18 th December 2024, to the limited extent set out hereinabove.
(b) The Respondent shall bear the costs of this application.
(c) This case is fixed on 8 th October, 2026 for mitigation to determine the appropriate sentence.
Orders accordingly.
Dated, signed and delivered this 1 st day of September, 2026 at Nakuru.
J. K. SERGON
JUDGE
In presence of:
Rutoh C/A
Kimaru for Respondent
Miss Langat for the Applicant
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