'1. The respondent/applicant in his Notice of Motion dated July 17, 2025, sought the following orders:
a) This court finds the appellant/respondent’s deliberate failure to demolish the illegal structures on the suit property, titled CR.27787 LR 5054/1227, and to vacate the premises, contrary to the court orders issued on May 3, 2023, by Hon. Kituku SPM, and upheld by this court on October 25, 2023 (Makori J).
b) As a result of the actions taken by the appellant/respondent, this court is pleased to hold the respondent in contempt of court for disobeying the orders dated 3 May 2023, and reaffirmed on October 25, 2023.
c) This court issues a warrant for the arrest of the appellant/respondent to summon him before the court to show cause why he should not be punished for contempt of the court’s orders.
d) The court punishes the appellant/respondent for contempt and enforces the appropriate punishment as prescribed by law.
e) The appellant/respondent is ordered to remedy the contempt by demolishing and removing all illegal structures on the suit property, Title Number CR 27787, LR 5054/1227, and vacating the premises immediately, while maintaining the status quo as of June 12, 2022, when the injunctive order restraining him from the property was issued.
f) The costs of this application are to be borne by the appellant/respondent.
2. The application is opposed based on the opposition filed on July 22, 2025, by the counsel for the appellant/respondent.
3. The court directed that the application be argued through written submissions. I acknowledge receipt of submissions from learned counsel Mr. Kinaro for the applicant and Mr. Angima for the respondent. The court appreciates these submissions, which helped clarify the issues in the application.
4. The issues for determination are whether the court has jurisdiction to hear and decide this application, and whether the applicant has established sufficient grounds for the orders sought. These issues are based on the pleadings and submissions of the parties involved.
5. Regarding jurisdiction, Mr. Kinaro argues that this court has the authority based on Section 5 of the Judicature Act, which states that the High Court and Court of Appeal have the same power to punish for contempt of court as the High Court of Justice in England currently has. This power also includes upholding the authority and dignity of lower courts. An order issued by the High Court for contempt of court can be appealed as if it were a conviction and sentence made under the court''s regular criminal jurisdiction. Additionally, the fundamental principles of common law remain applicable under Section 3 of the Judicature Act, along with the court''s inherent jurisdiction. See the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] KEHC 9233 (KLR).
6. Conversely, Mr. Angima, representing the respondent, argues that this court lacks the jurisdiction to consider the matter. He asserts that after the court issued its ruling on the appeal, the file was sent back to the lower court, where the case remains unresolved. Furthermore, there have been new developments in the lower court file, as an additional party has been included in the proceedings. Since the file was forwarded to the lower court, this court has no documentation on which to ground its decision.
7. While I agree with Mr. Kinaro''s argument regarding the court''s foundational jurisdiction to punish for contempt, as well articulated by Mativo J. in Samuel M. N. Mweru & Others (supra), I disagree that this court has jurisdiction to punish based on orders issued by the lower court and affirmed by this court.
8. As Mr. Angima correctly pointed out, once this court issued its ruling dated October 25, 2023, and returned the file to the lower court, the court became functus officio. The appeal was effectively exhausted. Nothing remains in the file since the appeal originated from a ruling on an interlocutory application before the lower court. The main case still proceeds in the lower court. I also add that the orders confirmed on appeal to this court, dated May 3, 2023, were issued by the lower court, not by this court. Reopening the current file to address issues of contempt of the lower court''s decision when the matter is active before the lower court would be procedurally incorrect. Mr. Kinaro is proposing to assign this court jurisdiction to execute orders of a lower court. It cannot happen.
9. The lower court must be moved first because Mr. Kinaro correctly pointed out that it has jurisdiction under Section 10 of the Magistrates Court Act to punish for contempt. Ignoring that court and attempting to enforce its orders here is fundamentally wrong. The importance of the lower court''s jurisdiction cannot be overstated, as it is the primary court in the judicial hierarchy of this country.
10. Consequently, this court has been wrongfully moved. The application dated July 17, 2025, is hereby dismissed, with costs to abide by the decision in the lower court file, which is still pending.
Dated, signed, and delivered virtually at Malindi on this 16th day of October, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kinaro for the Applicant
Happy: Court Assistant
In the absence of
Mr. Angima for the Respondent
'
a) This court finds the appellant/respondent’s deliberate failure to demolish the illegal structures on the suit property, titled CR.27787 LR 5054/1227, and to vacate the premises, contrary to the court orders issued on May 3, 2023, by Hon. Kituku SPM, and upheld by this court on October 25, 2023 (Makori J).
b) As a result of the actions taken by the appellant/respondent, this court is pleased to hold the respondent in contempt of court for disobeying the orders dated 3 May 2023, and reaffirmed on October 25, 2023.
c) This court issues a warrant for the arrest of the appellant/respondent to summon him before the court to show cause why he should not be punished for contempt of the court’s orders.
d) The court punishes the appellant/respondent for contempt and enforces the appropriate punishment as prescribed by law.
e) The appellant/respondent is ordered to remedy the contempt by demolishing and removing all illegal structures on the suit property, Title Number CR 27787, LR 5054/1227, and vacating the premises immediately, while maintaining the status quo as of June 12, 2022, when the injunctive order restraining him from the property was issued.
f) The costs of this application are to be borne by the appellant/respondent.
2. The application is opposed based on the opposition filed on July 22, 2025, by the counsel for the appellant/respondent.
3. The court directed that the application be argued through written submissions. I acknowledge receipt of submissions from learned counsel Mr. Kinaro for the applicant and Mr. Angima for the respondent. The court appreciates these submissions, which helped clarify the issues in the application.
4. The issues for determination are whether the court has jurisdiction to hear and decide this application, and whether the applicant has established sufficient grounds for the orders sought. These issues are based on the pleadings and submissions of the parties involved.
5. Regarding jurisdiction, Mr. Kinaro argues that this court has the authority based on Section 5 of the Judicature Act, which states that the High Court and Court of Appeal have the same power to punish for contempt of court as the High Court of Justice in England currently has. This power also includes upholding the authority and dignity of lower courts. An order issued by the High Court for contempt of court can be appealed as if it were a conviction and sentence made under the court''s regular criminal jurisdiction. Additionally, the fundamental principles of common law remain applicable under Section 3 of the Judicature Act, along with the court''s inherent jurisdiction. See the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] KEHC 9233 (KLR).
6. Conversely, Mr. Angima, representing the respondent, argues that this court lacks the jurisdiction to consider the matter. He asserts that after the court issued its ruling on the appeal, the file was sent back to the lower court, where the case remains unresolved. Furthermore, there have been new developments in the lower court file, as an additional party has been included in the proceedings. Since the file was forwarded to the lower court, this court has no documentation on which to ground its decision.
7. While I agree with Mr. Kinaro''s argument regarding the court''s foundational jurisdiction to punish for contempt, as well articulated by Mativo J. in Samuel M. N. Mweru & Others (supra), I disagree that this court has jurisdiction to punish based on orders issued by the lower court and affirmed by this court.
8. As Mr. Angima correctly pointed out, once this court issued its ruling dated October 25, 2023, and returned the file to the lower court, the court became functus officio. The appeal was effectively exhausted. Nothing remains in the file since the appeal originated from a ruling on an interlocutory application before the lower court. The main case still proceeds in the lower court. I also add that the orders confirmed on appeal to this court, dated May 3, 2023, were issued by the lower court, not by this court. Reopening the current file to address issues of contempt of the lower court''s decision when the matter is active before the lower court would be procedurally incorrect. Mr. Kinaro is proposing to assign this court jurisdiction to execute orders of a lower court. It cannot happen.
9. The lower court must be moved first because Mr. Kinaro correctly pointed out that it has jurisdiction under Section 10 of the Magistrates Court Act to punish for contempt. Ignoring that court and attempting to enforce its orders here is fundamentally wrong. The importance of the lower court''s jurisdiction cannot be overstated, as it is the primary court in the judicial hierarchy of this country.
10. Consequently, this court has been wrongfully moved. The application dated July 17, 2025, is hereby dismissed, with costs to abide by the decision in the lower court file, which is still pending.
Dated, signed, and delivered virtually at Malindi on this 16th day of October, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kinaro for the Applicant
Happy: Court Assistant
In the absence of
Mr. Angima for the Respondent
'