APPLICANTS CASE
Nilesh Gopal Vagadhia (hereinafter referred to as the Applicant) has come to this court against Hasamudin Tayabari Nanabhai and Darul Naem Apartments Limited (hereinafter referred to as the Respondents) seeking the following orders;
1. Spent
2. Spent
3. Spent
4. That this honorable court be pleased to find and declare that; Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, the directors of Darul Naeem Apartments Limited are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024.
5. THAT upon grant of prayer 4, this Honorable Court be pleased to summon the said Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, directors of Darul Naeem Apartments Limited, the Defendant/ Respondent to show cause why they should not be punished for contempt of court and that upon their failure to do so, they be committed to civil jail for a period not exceeding six (6) months or be fined such amount that this honorable court may deem fit and just or both.
6. THAT after the interpartes hearing, the construction on property known as Plot No. Mombasa/Block XXI/191/Mombasa Island be stopped and/or suspended indefinitely until the Defendant/Respondent has fully purged its contempt and has fully complied with Orders of this court issued on 25th September and the Consent Order recorded on 8th April 2024.
7. THAT the Defendant/Respondent be compelled by way of mandatory injunction to forthwith
a) Erect and maintain adequate and effective safety nets, screens, barriers and hoarding around the construction site as the engineers shall specify to prevent any debris, dust or any other materials from falling into the applicant’s property.
b) Repair at its cost within a stipulated time, all cracks and other structural damage to the applicant’s house and compound to the satisfaction of a jointly appointed structural engineer
c) Pay for a suitable alternative accommodation for the Applicants and their family members whilst the repairs are ongoing until the interior and exterior of their house is repaired and restored to the state it was, prior to the damage.
d) To repaint the Applicants Four (4) motor vehicles, to restore them to the condition they were prior to their being damaged by cement and construction debris or to replace them.
8. Directions and any other order on hearing of the Application or Suit
9. Costs of the Application.
10. The grounds of this Application are that the 2nd Defendant's ongoing development on Plot No. Mombasa/Block XXI/191/Mombasa Island, situated along Sauti ya Kenya Road in the Ganjoni area of Mombasa, has continued to occasion nuisance to the Plaintiffs' adjoining property, Plot No. Mombasa/Block XXI/190/Mombasa Island. Despite the existence of the Court Order issued on 25th September 2023 and the Consent Order recorded and adopted by this Honorable Court on 8th April 2024, both of which are binding upon all the parties, the Respondent has deliberately and/or willfully failed to comply with the prescribed safety requirements governing the ongoing construction, thereby perpetuating a continuous state of nuisance to the detriment of the Plaintiffs.
11. The Applicant deposes that, notwithstanding the adoption of the consent order, wet cement, dust, debris, stones and other construction materials continue to fall from the Respondent's construction site onto the Applicant's property and motor vehicles, in the same manner as before the consent was recorded. The Applicant further avers that the motor vehicles, which had previously been repainted at the Respondent's expense as a result of the alleged damage, continue to be adversely affected.
12. The Applicant further avers that the Respondent has failed to comply with the terms of the consent order requiring the repair of the Applicant's house. It is contended that, as a consequence of the Respondent's alleged non-compliance, the cracks in the house have continued to widen, thereby exposing the property to further deterioration and depreciation in value.
13. It is the Applicant's case that the Respondent's continued actions and omissions threaten the Applicant's constitutionally guaranteed right to a clean and healthy environment under Article 42 of the Constitution. The Applicant further contends that the Respondent's conduct is calculated to undermine the authority and dignity of the Court and demonstrates a deliberate disregard for the consent orders issued herein. It is further asserted that, unless the orders sought are granted, the Respondent will persist in its alleged non-compliance with the Court's orders with impunity.
RESPONDENTS CASE
14. The Respondents filed a Replying Affidavit dated 25th July 2025, in which they contend that they have substantially complied with the Court Orders issued on 25th September 2023 and the Consent Orders recorded on 8th April 2024. They maintain that they continue to implement the requisite measures to ensure that the Plaintiffs' property is adequately protected from debris and falling materials arising from the ongoing construction works.
15. The Respondents further aver that, pursuant to the recorded consent, they undertook and completed repairs to all vehicles alleged to have been damaged as a result of the construction activities and settled all the corresponding repair costs. They also contend that the Applicant has persistently lodged complaints with the Chief Building Inspector of Mombasa and the National Environment Management Authority (NEMA). However, following investigations, NEMA prepared a report confirming that the requisite environmental mitigation measures had been complied with and were being satisfactorily implemented.
16. The Respondents further state that the Applicant ought to appreciate that construction activities inevitably generate a certain degree of dust and cement particles, which may disperse into the surrounding environment due to external factors beyond their control.
17. In his Further Affidavit, the Applicant reiterates that the Respondents have failed to comply with the orders of the Court and the consent orders. He contends that the photographs produced by the Respondents do not accurately reflect the prevailing state of affairs. He further avers that, in good faith, they made efforts to engage the Respondents with a view to resolving the issues amicably, but the Respondents remained unwilling to do so. He avers that the application is merited and therefore should be allowed.
18. This matter came up for mention on 18th March 2026 to confirm settlement. Since the parties had not reached a consensus, the Court directed the Applicant to file a supplementary affidavit together with written submissions, the Respondents were likewise directed to file their written submissions. Although the Applicant subsequently filed a Supplementary Affidavit dated 8th April 2026, no written submissions were filed by either party. As at the time of preparing this ruling, neither party had complied with the Court's directions on the filing of submissions.
ANALYSIS AND DETERMINATION
19. The issue for determination is whether the Respondents are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024.
20. Contempt of court is willful disobedience of court orders and its ingredients were established in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] KEHC 9233 (KLR). In that decision, the court stated that: It is an established principle of law that, in order to succeed in civil contempt proceedings, the applicant must prove: (i) the terms of the court order; (ii) the Respondent's knowledge of those terms; and (iii) the Respondent's failure to comply with the terms of the order.
21. In the present case, there is no dispute that the Respondents were aware of both the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024. Indeed, their position is not that they lacked knowledge of the orders, but rather that they have not acted in breach of any of their terms.
22. I have carefully considered the application, the replying affidavits, the supplementary affidavit, and the annexures filed by the parties. Upon evaluation of the material placed before the Court, I find that the Applicant has demonstrated, on the requisite standard applicable in contempt proceedings, that the Respondents have not fully complied with the Court's orders. In particular, the Respondents have failed to demonstrate that payment relating to Motor Vehicle Registration No. KBU 799C, as directed by the Court, was ever made. The invoice annexed by the Respondents merely evidence the amounts claimed or demanded; they do not constitute proof that payment was actually effected. No receipts, bank statements, payment confirmations, acknowledgement of payment, or any other documentary evidence demonstrating that the payment was made have been produced before this Court.
23. The Court also notes that its orders were not limited to the repair of the damaged motor vehicle but also expressly required the Respondents to undertake repairs to the Applicant's house at their own cost. The photographic evidence exhibited by the Applicant clearly depicts that the cracks on the Applicant's house remain unrepaired and that debris from the Respondents' activities continues to spill onto the Applicant's property. These photographs are consistent with the Applicant's averments and remain largely uncontroverted. Despite asserting compliance, the Respondents have not placed before the Court any evidence of the measures taken towards fulfilling this obligation, such as inspection reports, contractor invoices, or photographs demonstrating that the repairs were undertaken. This can only lead to the inference that the order has not been complied with.
24. In view of the foregoing, this court concludes that Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, directors of Darul Naeem Apartments Limited are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024 and Orders as follows;
a) The directors shall purge the contempt within fourteen (14) days of the date hereof by fully complying with the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024 by;
i. Erecting and maintaining adequate and effective safety nets, screens, barriers and hoarding around the construction site to prevent debris, dust, cement and other construction materials from falling onto the Applicant's property;
ii. repairing, at their own cost, all cracks and structural damage occasioned to the Applicant's property; and
iii. restoring the Applicant's motor vehicles damaged by cement and construction debris, all in accordance with the Court Order issued on.
b) The Chief Building Inspector, County Government of Mombasa, shall inspect the Respondents' construction site and the Applicant's adjoining property every thirty (30) days and file a report before this Court on the Respondents' compliance with these orders until further orders of the Court.
c) The matter shall be mentioned before the Deputy Registrar every thirty (30) days, or as the Deputy Registrar may direct, upon the filing of the compliance report for purposes of monitoring compliance, and the Deputy Registrar shall place the matter before the Court for such further directions as may be necessary.
d) In default of compliance with these orders, the Court shall proceed to impose the appropriate sanctions for contempt, including committal to civil jail and/or the imposition of a fine.
e) The Applicant shall have the costs of this application. Mention for further directions on 30th September 2026.
Nilesh Gopal Vagadhia (hereinafter referred to as the Applicant) has come to this court against Hasamudin Tayabari Nanabhai and Darul Naem Apartments Limited (hereinafter referred to as the Respondents) seeking the following orders;
1. Spent
2. Spent
3. Spent
4. That this honorable court be pleased to find and declare that; Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, the directors of Darul Naeem Apartments Limited are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024.
5. THAT upon grant of prayer 4, this Honorable Court be pleased to summon the said Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, directors of Darul Naeem Apartments Limited, the Defendant/ Respondent to show cause why they should not be punished for contempt of court and that upon their failure to do so, they be committed to civil jail for a period not exceeding six (6) months or be fined such amount that this honorable court may deem fit and just or both.
6. THAT after the interpartes hearing, the construction on property known as Plot No. Mombasa/Block XXI/191/Mombasa Island be stopped and/or suspended indefinitely until the Defendant/Respondent has fully purged its contempt and has fully complied with Orders of this court issued on 25th September and the Consent Order recorded on 8th April 2024.
7. THAT the Defendant/Respondent be compelled by way of mandatory injunction to forthwith
a) Erect and maintain adequate and effective safety nets, screens, barriers and hoarding around the construction site as the engineers shall specify to prevent any debris, dust or any other materials from falling into the applicant’s property.
b) Repair at its cost within a stipulated time, all cracks and other structural damage to the applicant’s house and compound to the satisfaction of a jointly appointed structural engineer
c) Pay for a suitable alternative accommodation for the Applicants and their family members whilst the repairs are ongoing until the interior and exterior of their house is repaired and restored to the state it was, prior to the damage.
d) To repaint the Applicants Four (4) motor vehicles, to restore them to the condition they were prior to their being damaged by cement and construction debris or to replace them.
8. Directions and any other order on hearing of the Application or Suit
9. Costs of the Application.
10. The grounds of this Application are that the 2nd Defendant's ongoing development on Plot No. Mombasa/Block XXI/191/Mombasa Island, situated along Sauti ya Kenya Road in the Ganjoni area of Mombasa, has continued to occasion nuisance to the Plaintiffs' adjoining property, Plot No. Mombasa/Block XXI/190/Mombasa Island. Despite the existence of the Court Order issued on 25th September 2023 and the Consent Order recorded and adopted by this Honorable Court on 8th April 2024, both of which are binding upon all the parties, the Respondent has deliberately and/or willfully failed to comply with the prescribed safety requirements governing the ongoing construction, thereby perpetuating a continuous state of nuisance to the detriment of the Plaintiffs.
11. The Applicant deposes that, notwithstanding the adoption of the consent order, wet cement, dust, debris, stones and other construction materials continue to fall from the Respondent's construction site onto the Applicant's property and motor vehicles, in the same manner as before the consent was recorded. The Applicant further avers that the motor vehicles, which had previously been repainted at the Respondent's expense as a result of the alleged damage, continue to be adversely affected.
12. The Applicant further avers that the Respondent has failed to comply with the terms of the consent order requiring the repair of the Applicant's house. It is contended that, as a consequence of the Respondent's alleged non-compliance, the cracks in the house have continued to widen, thereby exposing the property to further deterioration and depreciation in value.
13. It is the Applicant's case that the Respondent's continued actions and omissions threaten the Applicant's constitutionally guaranteed right to a clean and healthy environment under Article 42 of the Constitution. The Applicant further contends that the Respondent's conduct is calculated to undermine the authority and dignity of the Court and demonstrates a deliberate disregard for the consent orders issued herein. It is further asserted that, unless the orders sought are granted, the Respondent will persist in its alleged non-compliance with the Court's orders with impunity.
RESPONDENTS CASE
14. The Respondents filed a Replying Affidavit dated 25th July 2025, in which they contend that they have substantially complied with the Court Orders issued on 25th September 2023 and the Consent Orders recorded on 8th April 2024. They maintain that they continue to implement the requisite measures to ensure that the Plaintiffs' property is adequately protected from debris and falling materials arising from the ongoing construction works.
15. The Respondents further aver that, pursuant to the recorded consent, they undertook and completed repairs to all vehicles alleged to have been damaged as a result of the construction activities and settled all the corresponding repair costs. They also contend that the Applicant has persistently lodged complaints with the Chief Building Inspector of Mombasa and the National Environment Management Authority (NEMA). However, following investigations, NEMA prepared a report confirming that the requisite environmental mitigation measures had been complied with and were being satisfactorily implemented.
16. The Respondents further state that the Applicant ought to appreciate that construction activities inevitably generate a certain degree of dust and cement particles, which may disperse into the surrounding environment due to external factors beyond their control.
17. In his Further Affidavit, the Applicant reiterates that the Respondents have failed to comply with the orders of the Court and the consent orders. He contends that the photographs produced by the Respondents do not accurately reflect the prevailing state of affairs. He further avers that, in good faith, they made efforts to engage the Respondents with a view to resolving the issues amicably, but the Respondents remained unwilling to do so. He avers that the application is merited and therefore should be allowed.
18. This matter came up for mention on 18th March 2026 to confirm settlement. Since the parties had not reached a consensus, the Court directed the Applicant to file a supplementary affidavit together with written submissions, the Respondents were likewise directed to file their written submissions. Although the Applicant subsequently filed a Supplementary Affidavit dated 8th April 2026, no written submissions were filed by either party. As at the time of preparing this ruling, neither party had complied with the Court's directions on the filing of submissions.
ANALYSIS AND DETERMINATION
19. The issue for determination is whether the Respondents are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024.
20. Contempt of court is willful disobedience of court orders and its ingredients were established in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] KEHC 9233 (KLR). In that decision, the court stated that: It is an established principle of law that, in order to succeed in civil contempt proceedings, the applicant must prove: (i) the terms of the court order; (ii) the Respondent's knowledge of those terms; and (iii) the Respondent's failure to comply with the terms of the order.
21. In the present case, there is no dispute that the Respondents were aware of both the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024. Indeed, their position is not that they lacked knowledge of the orders, but rather that they have not acted in breach of any of their terms.
22. I have carefully considered the application, the replying affidavits, the supplementary affidavit, and the annexures filed by the parties. Upon evaluation of the material placed before the Court, I find that the Applicant has demonstrated, on the requisite standard applicable in contempt proceedings, that the Respondents have not fully complied with the Court's orders. In particular, the Respondents have failed to demonstrate that payment relating to Motor Vehicle Registration No. KBU 799C, as directed by the Court, was ever made. The invoice annexed by the Respondents merely evidence the amounts claimed or demanded; they do not constitute proof that payment was actually effected. No receipts, bank statements, payment confirmations, acknowledgement of payment, or any other documentary evidence demonstrating that the payment was made have been produced before this Court.
23. The Court also notes that its orders were not limited to the repair of the damaged motor vehicle but also expressly required the Respondents to undertake repairs to the Applicant's house at their own cost. The photographic evidence exhibited by the Applicant clearly depicts that the cracks on the Applicant's house remain unrepaired and that debris from the Respondents' activities continues to spill onto the Applicant's property. These photographs are consistent with the Applicant's averments and remain largely uncontroverted. Despite asserting compliance, the Respondents have not placed before the Court any evidence of the measures taken towards fulfilling this obligation, such as inspection reports, contractor invoices, or photographs demonstrating that the repairs were undertaken. This can only lead to the inference that the order has not been complied with.
24. In view of the foregoing, this court concludes that Sabrina Jelani Haji Badawi, Fatma Jelani Haji Badawi and Jelani Haji Badawi Bosire, directors of Darul Naeem Apartments Limited are in contempt of the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024 and Orders as follows;
a) The directors shall purge the contempt within fourteen (14) days of the date hereof by fully complying with the Court Order issued on 25th September 2023 and the Consent Order recorded on 8th April 2024 by;
i. Erecting and maintaining adequate and effective safety nets, screens, barriers and hoarding around the construction site to prevent debris, dust, cement and other construction materials from falling onto the Applicant's property;
ii. repairing, at their own cost, all cracks and structural damage occasioned to the Applicant's property; and
iii. restoring the Applicant's motor vehicles damaged by cement and construction debris, all in accordance with the Court Order issued on.
b) The Chief Building Inspector, County Government of Mombasa, shall inspect the Respondents' construction site and the Applicant's adjoining property every thirty (30) days and file a report before this Court on the Respondents' compliance with these orders until further orders of the Court.
c) The matter shall be mentioned before the Deputy Registrar every thirty (30) days, or as the Deputy Registrar may direct, upon the filing of the compliance report for purposes of monitoring compliance, and the Deputy Registrar shall place the matter before the Court for such further directions as may be necessary.
d) In default of compliance with these orders, the Court shall proceed to impose the appropriate sanctions for contempt, including committal to civil jail and/or the imposition of a fine.
e) The Applicant shall have the costs of this application. Mention for further directions on 30th September 2026.