'Introduction
1. By way of a Chamber Summons Application dated 25th April 2025, the Petitioner seeks orders that:
i. This Court be pleased to find the Academic Registrar Of Kenyatta University in contempt of the Order of this Honorable Court issued on 4th October 2024 compelling the Respondent to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the 30 days of the date of the Judgment or to file a report in Court within 30 days of the order detailing a clear pathway for the Petitioner to take in line with the Respondent’s examination policies so as to be eligible for graduation.
ii. The said Academic Registrar Of Kenyatta University be arrested and committed to prison for a term not exceeding six (6) months for contempt of Court.
iii. In the alternative to 2 above, a notice to show cause do issue to the said Academic Registrar of Kenyatta University to show cause why he should not be arrested and committed to prison for a term not exceeding six (6) months for contempt of court.
iv. This Court be pleased to order that the said Academic Registrar of Kenyatta University will not be heard by the Court until they purge the contempt.
v. This Court be pleased to issue such other or further punitive orders in respect of the said contempt as may be necessary for the ends of justice to be met.
vi. The costs of this application and of the appeal be borne by the Respondent.
Petitioner’s Case
2. The Application is supported by the Petitioner’s affidavit, sworn on even date and the grounds on the face of the application.
3. The Petitioner avers that this Court on 4th October 2024 issued the following order:
This Court hereby issues an order compelling the Respondents to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the next 30 days. If for any reason the results of the two units cannot be retrieved or are available but do not qualify the Petitioner to graduate from the University, the Respondent should file a report with the Court within 30 days detailing a clear pathway for the Petitioner to undertake in line with the Respondent’s examination policies so as to be eligible for graduation.
4. The Petitioner depones that once he obtained a copy of the Judgment from the Court on 21st February 2025, he through a Court process server, served the same on the Respondent’s officer, the Academics Registrar. In addition, on 4th March 2025, the Registrar Academic, Prof. Kivunge Benard, was served personally with the Judgment.
5. The Petitioner asserts that despite being served with these orders personally, the Respondent and/or the Registrar Academic, Prof. Kivunge Benard has refused, failed and neglected to avail his missing marks in the two units as ordered by this Court.
6. The Petitioner asserts that as a result of the Respondent’s disobedience, he continues to suffer stagnation, loss of opportunities and financial strain as he has had to camp in Nairobi so that he can persistently follow up on the matter with the Respondent.
7. On this premise, he argues that it is essential for the rule of law and administration of justice that Court Orders be obeyed.
Respondent’s Case
8. The Respondent’s response and submissions to the application are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
9. The Petitioner through S.B. Otieno and Company Advocates filed submissions dated 29th July 2025.
10. Counsel reiterating the Petitioner’s assertions in the affidavit submitted that the Respondent notwithstanding service of the issued orders has failed to comply with the specific Court Order. Counsel added that the Respondent had also not filed a response to explain why it had not complied.
11. Similarly, Counsel noted that when the Respondent’s advocate attended Court on 24th June 2025, 9th July 2025 and 21st July 2025, no elucidation was issued for the Respondent’s non-compliance with the Court order. Instead it is argued that the Respondent just kept promising to file a response which was never done in the end.
12. In Counsel’s view, the Respondent’s defiance is willful. It was emphasized that it is in public interest that parties obey Court Orders. On this basis, Counsel urged the Court to allow the Petitioner’s Application.
13. To buttress this point reliance was placed in B. V. Attorney General [2004] 1 KLR 431 where it was held that:
“The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”
[28] It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen.”
14. Like dependence was placed in Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi) [2018] eKLR, Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK), and Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006.
Analysis and Determination
15. It is my considered view that the issue that arises for determination is:
Whether the Respondent is guilty of contempt of Court
16. The law governing contempt of Court proceedings in Kenya was explicated in Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017] KEHC 8755 (KLR) as follows:
“According to Black''s Law Dictionary;
" Contempt is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body."
In Halsbury''s Laws of England it is stated:-
"It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment ..............an application to court by him not being entertained until he had purged his contempt"
In book The Law of Contempt learned authors Nigel Lowe & Brenda Sufrin state a follows:-
"Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honoured unless and until they are set aside. Furthermore it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside."
In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another[11]Ibrahim J (as he then was) stated as follows:-
"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 or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that 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 an order believes it to be irregular or void."
Rule of law makes it incumbent for all persons, without exception to respect court orders at all times. The whole purpose of litigation as a process of judicial administration is lost if court orders are not complied with. A party who knows f an order whether null or valid, regular or irregular cannot be permitted to disobey it.[12] It would be most dangerous to hold that suitors or their solicitors could themselves judge whether an order was null or valid; whether it was regular or irregular.[13]There is need to emphasize that the principle of law is that the whole essence of litigation as a process of judicial administration is lost if orders issued by court through the set judicial process in the normal functioning of courts are not complied with in full by those targeted and / or called upon to give due compliance / effect. A State organ or agency or person legally and duty bound to give due compliance must do so. Court orders cannot be issued in vain.
It cannot be disputed that an order of the court has to be respected by the parties who are bound by it. Therefore every effort must be made to implement the order of the court and not to disobey the same. It is not up to that party to choose whether to comply or not to comply with such an order. The order must be complied with in totality, in all circumstances by the party concerned, subject to the party’s right to challenge the order in issue, in such a lawful way as the law permits.
The purpose of this is simple. It is to protect the sanctity of the courts of judicature, which is well envisaged in the Constitution; sustain the confidence in the third arm of government so that all the people who feel aggrieved by government, its agencies or private persons can have a place to run to for a neutral determination. To disregard court orders therefore, among others in my view, is by implication, to set the precedent that people should not believe in the courts. This is wrong because it puts persons in our country on a collision course with no remedy thus creating a medium in which they descend into anarchy by resorting to taking the law into their hands. This is in utter disregard of the democratic and good governance principles and values enshrined in our Constitution.
It is trite that the court will not condone or enforce an illegality. I think it is important to bear in mind that Article 259 (1) of the constitution enjoins the court to interpret the constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. This court is obliged under Article 159 (2) (e) of the constitution to protect and promote the purposes and principles of the constitution. Also, the constitution should be given a purposive, liberal interpretation. I stand guided by the clear provisions of the constitution which is the supreme law of the land which binds all persons and all state organs.
The High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell held 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.
Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand[17] have authoritatively stated as follows:-
"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.”
17. Similarly, the Court in Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others [2015] KEHC 6933 (KLR) underscored the purpose of contempt of Court orders as follows:
“23. In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:
“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, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that 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 an order believes it to be irregular or void”.
18. On this premise, a party who seeks to have the Court issue the contempt of Court Order must meet the threshold as highlighted in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] KEHC 9233 (KLR):
“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.Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand 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:-
1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
2. the defendant had knowledge of or proper notice of the terms of the order;
3. the defendant has acted in breach of the terms of the order; and
4. the defendant''s conduct was deliberate.”
19. In addition, the Court in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR) cautioned as follows:
“51. 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 willful 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 criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.
52. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order.”
20. The Court went on to further stress as follows:
“58. The emphasis as shown in the above cases is that there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful 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 willfully disobeyed it.
59. In Peter K Yego & others v Pauline Wekesa Kode, (Acc No. 194 of 2014, the court stated that “it must be proved that one had actually disobeyed the court order before being cited to contempt.”
60. And in Katsuri Limited v Kapurchand Depor Shah [2016] eKLR, citing Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division case No 364 of 2005), it was stated that “in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”
61. The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:
a. The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.
b. The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.
c. The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
21. The Petitioner contends that the Respondent is in contempt of the order that was issued by this Court on 4th October 2024.
22. To succeed in this allegation the Petitioner as discussed must satisfy the ingredients canvassed in the judicial authorities discussed above. First, a party seeking these orders, must ascertain that the terms of the order were clear and unambiguous to the accused party. Further, the party must prove that the accused party willingly failed to comply with the set terms.
23. The specific term of the key Order was:
This Court hereby issues an order compelling the Respondents to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the next 30 days. If for any reason the results of the two units cannot be retrieved or are available but do not qualify the Petitioner to graduate from the University, the Respondent should file a report with the Court within 30 days detailing a clear pathway for the Petitioner to undertake in line with the Respondent’s examination policies so as to be eligible for graduation.
24. To commence with, the Petitioner states that the terms of this order are well known to the Respondent through the Academic Registrar. The Petitioner deponed that this order was served personally on the Registrar Academics, Prof. Kivunge Benard on 4th March 2025 vide an affidavit of service of equal date sworn by Stephen Njonjo, a licensed process server. He noted in the affidavit that Prof. Kivunge Benard having been briefed on the purpose of the visit, accepted service of the documents and stamped the front page of the copies.
25. This Order explicitly directs the Respondent to avail the Petitioner’s missing marks in the two units within 30 days and if for any reason these results could not be availed, the Respondent was required to file a report with the Court within 30 days, indicating the means the Petitioner should take so as to be eligible for graduation.
26. According to the Petitioner, despite these clear instructions, well known to the Respondent, it has failed to adhere to the terms of the order. For this reason, the Petitioner asserts that the Respondent is in contempt of this order.
27. This Court is satisfied that the Respondent has failed to uphold the terms of the Court order aforesaid. The Order specifically instructed that the Petitioner’s missing marks be availed in default of which a report was to be filed in Court in the manner expressly indicated in that order.
28. Throughout, the Respondent has been silent on the matter despite being fully aware of those orders. He has not even bothered to seek this Court’s indulgence if for some reason there were difficulties encountered in complying with the said order.
29. It is my humble conclusion that the Petitioner has demonstrated that the Respondent was aware of the terms of the order having served the Registrar Academics personally, however the Respondent has failed to comply with the same.
30. I do thus find that the Respondent to be in contempt of this Court’s order.
31. As was held in the South African Constitutional Court case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021)
“…orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts… The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest…”
32. Further in Civil Application No. Nai 1 of 2017; Dr. Fred Matiang’i-The Cabinet Secretary, Ministry of Interior and Coordination of National Government vs Miguna Miguna and 4 others the Court of Appeal observed thus:
“… When Courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”
33. The Supreme Court in Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 41 (KLR) acknowledged that Courts have inherent power of the Court to punish for contempt by explaining thus:
“… Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. We note that the Contempt of Court Act having been declared unconstitutional in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR on November 9, 2018 the instructive provision remains section 5(1) of the Judicature Act which grants the High Court and the Court of Appeal the power to punish for contempt. It provides:(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 that power shall extend to upholding the authority and dignity of subordinate courts...”
34. In view of foregoing and having found one Prof. Bernand Kivunge guilty for contempt of Court, I direct that summons be issued for the said Prof. Benard Kivunge to appear before this Court personally on 5/11/2025 for purposes of being punished for the deliberate disobedience of this Court’s orders.
Dated, signed and delivered virtually at Nairobi this 23rd day of October, 2025.
………………………………………..
L N MUGAMBI
JUDGE
'
1. By way of a Chamber Summons Application dated 25th April 2025, the Petitioner seeks orders that:
i. This Court be pleased to find the Academic Registrar Of Kenyatta University in contempt of the Order of this Honorable Court issued on 4th October 2024 compelling the Respondent to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the 30 days of the date of the Judgment or to file a report in Court within 30 days of the order detailing a clear pathway for the Petitioner to take in line with the Respondent’s examination policies so as to be eligible for graduation.
ii. The said Academic Registrar Of Kenyatta University be arrested and committed to prison for a term not exceeding six (6) months for contempt of Court.
iii. In the alternative to 2 above, a notice to show cause do issue to the said Academic Registrar of Kenyatta University to show cause why he should not be arrested and committed to prison for a term not exceeding six (6) months for contempt of court.
iv. This Court be pleased to order that the said Academic Registrar of Kenyatta University will not be heard by the Court until they purge the contempt.
v. This Court be pleased to issue such other or further punitive orders in respect of the said contempt as may be necessary for the ends of justice to be met.
vi. The costs of this application and of the appeal be borne by the Respondent.
Petitioner’s Case
2. The Application is supported by the Petitioner’s affidavit, sworn on even date and the grounds on the face of the application.
3. The Petitioner avers that this Court on 4th October 2024 issued the following order:
This Court hereby issues an order compelling the Respondents to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the next 30 days. If for any reason the results of the two units cannot be retrieved or are available but do not qualify the Petitioner to graduate from the University, the Respondent should file a report with the Court within 30 days detailing a clear pathway for the Petitioner to undertake in line with the Respondent’s examination policies so as to be eligible for graduation.
4. The Petitioner depones that once he obtained a copy of the Judgment from the Court on 21st February 2025, he through a Court process server, served the same on the Respondent’s officer, the Academics Registrar. In addition, on 4th March 2025, the Registrar Academic, Prof. Kivunge Benard, was served personally with the Judgment.
5. The Petitioner asserts that despite being served with these orders personally, the Respondent and/or the Registrar Academic, Prof. Kivunge Benard has refused, failed and neglected to avail his missing marks in the two units as ordered by this Court.
6. The Petitioner asserts that as a result of the Respondent’s disobedience, he continues to suffer stagnation, loss of opportunities and financial strain as he has had to camp in Nairobi so that he can persistently follow up on the matter with the Respondent.
7. On this premise, he argues that it is essential for the rule of law and administration of justice that Court Orders be obeyed.
Respondent’s Case
8. The Respondent’s response and submissions to the application are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
9. The Petitioner through S.B. Otieno and Company Advocates filed submissions dated 29th July 2025.
10. Counsel reiterating the Petitioner’s assertions in the affidavit submitted that the Respondent notwithstanding service of the issued orders has failed to comply with the specific Court Order. Counsel added that the Respondent had also not filed a response to explain why it had not complied.
11. Similarly, Counsel noted that when the Respondent’s advocate attended Court on 24th June 2025, 9th July 2025 and 21st July 2025, no elucidation was issued for the Respondent’s non-compliance with the Court order. Instead it is argued that the Respondent just kept promising to file a response which was never done in the end.
12. In Counsel’s view, the Respondent’s defiance is willful. It was emphasized that it is in public interest that parties obey Court Orders. On this basis, Counsel urged the Court to allow the Petitioner’s Application.
13. To buttress this point reliance was placed in B. V. Attorney General [2004] 1 KLR 431 where it was held that:
“The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”
[28] It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen.”
14. Like dependence was placed in Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County (Ex Parte David Mugo Mwangi) [2018] eKLR, Wildlife Lodges Ltd vs. County Council of Narok and Another [2005] 2 EA 344 (HCK), and Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006.
Analysis and Determination
15. It is my considered view that the issue that arises for determination is:
Whether the Respondent is guilty of contempt of Court
16. The law governing contempt of Court proceedings in Kenya was explicated in Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others [2017] KEHC 8755 (KLR) as follows:
“According to Black''s Law Dictionary;
" Contempt is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body."
In Halsbury''s Laws of England it is stated:-
"It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment ..............an application to court by him not being entertained until he had purged his contempt"
In book The Law of Contempt learned authors Nigel Lowe & Brenda Sufrin state a follows:-
"Coercive orders made by the courts should be obeyed and undertakings formally given to the courts should be honoured unless and until they are set aside. Furthermore it is generally no answer to an action for contempt that the order disobeyed or the undertaking broken should not have been made or accepted in the first place. The proper course if it is sought to challenge the order or undertaking is to apply to have it set aside."
In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another[11]Ibrahim J (as he then was) stated as follows:-
"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 or in respect of whom, an order is made by Court of competent jurisdiction, to obey it unless and until that 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 an order believes it to be irregular or void."
Rule of law makes it incumbent for all persons, without exception to respect court orders at all times. The whole purpose of litigation as a process of judicial administration is lost if court orders are not complied with. A party who knows f an order whether null or valid, regular or irregular cannot be permitted to disobey it.[12] It would be most dangerous to hold that suitors or their solicitors could themselves judge whether an order was null or valid; whether it was regular or irregular.[13]There is need to emphasize that the principle of law is that the whole essence of litigation as a process of judicial administration is lost if orders issued by court through the set judicial process in the normal functioning of courts are not complied with in full by those targeted and / or called upon to give due compliance / effect. A State organ or agency or person legally and duty bound to give due compliance must do so. Court orders cannot be issued in vain.
It cannot be disputed that an order of the court has to be respected by the parties who are bound by it. Therefore every effort must be made to implement the order of the court and not to disobey the same. It is not up to that party to choose whether to comply or not to comply with such an order. The order must be complied with in totality, in all circumstances by the party concerned, subject to the party’s right to challenge the order in issue, in such a lawful way as the law permits.
The purpose of this is simple. It is to protect the sanctity of the courts of judicature, which is well envisaged in the Constitution; sustain the confidence in the third arm of government so that all the people who feel aggrieved by government, its agencies or private persons can have a place to run to for a neutral determination. To disregard court orders therefore, among others in my view, is by implication, to set the precedent that people should not believe in the courts. This is wrong because it puts persons in our country on a collision course with no remedy thus creating a medium in which they descend into anarchy by resorting to taking the law into their hands. This is in utter disregard of the democratic and good governance principles and values enshrined in our Constitution.
It is trite that the court will not condone or enforce an illegality. I think it is important to bear in mind that Article 259 (1) of the constitution enjoins the court to interpret the constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. This court is obliged under Article 159 (2) (e) of the constitution to protect and promote the purposes and principles of the constitution. Also, the constitution should be given a purposive, liberal interpretation. I stand guided by the clear provisions of the constitution which is the supreme law of the land which binds all persons and all state organs.
The High Court of South Africa in the case of Kristen Carla Burchell vs Barry Grant Burchell held 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.
Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand[17] have authoritatively stated as follows:-
"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.”
17. Similarly, the Court in Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others [2015] KEHC 6933 (KLR) underscored the purpose of contempt of Court orders as follows:
“23. In my considered view, Court orders are not made in vain and are meant to be complied with. If for any reason a party has difficulty in complying with court orders the honourable thing to do is to come back to court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit the same is valid unless set aside on review or on appeal. In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim, J (as he then was) stated:
“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, or in respect of whom, an order is made by a Court of competent jurisdiction, to obey it unless and until that 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 an order believes it to be irregular or void”.
18. On this premise, a party who seeks to have the Court issue the contempt of Court Order must meet the threshold as highlighted in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] KEHC 9233 (KLR):
“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.Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand 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:-
1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
2. the defendant had knowledge of or proper notice of the terms of the order;
3. the defendant has acted in breach of the terms of the order; and
4. the defendant''s conduct was deliberate.”
19. In addition, the Court in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR) cautioned as follows:
“51. 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 willful 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 criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.
52. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order.”
20. The Court went on to further stress as follows:
“58. The emphasis as shown in the above cases is that there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful 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 willfully disobeyed it.
59. In Peter K Yego & others v Pauline Wekesa Kode, (Acc No. 194 of 2014, the court stated that “it must be proved that one had actually disobeyed the court order before being cited to contempt.”
60. And in Katsuri Limited v Kapurchand Depor Shah [2016] eKLR, citing Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division case No 364 of 2005), it was stated that “in order for an applicant to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, knowledge of the terms by the respondent, failure by the respondent to comply with the terms of the order.”
61. The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:
a. The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.
b. The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.
c. The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
21. The Petitioner contends that the Respondent is in contempt of the order that was issued by this Court on 4th October 2024.
22. To succeed in this allegation the Petitioner as discussed must satisfy the ingredients canvassed in the judicial authorities discussed above. First, a party seeking these orders, must ascertain that the terms of the order were clear and unambiguous to the accused party. Further, the party must prove that the accused party willingly failed to comply with the set terms.
23. The specific term of the key Order was:
This Court hereby issues an order compelling the Respondents to avail the Petitioner’s missing marks in the two units (Guitar Skills MDT 223 & Theory of aural Skills MDT 200) within the next 30 days. If for any reason the results of the two units cannot be retrieved or are available but do not qualify the Petitioner to graduate from the University, the Respondent should file a report with the Court within 30 days detailing a clear pathway for the Petitioner to undertake in line with the Respondent’s examination policies so as to be eligible for graduation.
24. To commence with, the Petitioner states that the terms of this order are well known to the Respondent through the Academic Registrar. The Petitioner deponed that this order was served personally on the Registrar Academics, Prof. Kivunge Benard on 4th March 2025 vide an affidavit of service of equal date sworn by Stephen Njonjo, a licensed process server. He noted in the affidavit that Prof. Kivunge Benard having been briefed on the purpose of the visit, accepted service of the documents and stamped the front page of the copies.
25. This Order explicitly directs the Respondent to avail the Petitioner’s missing marks in the two units within 30 days and if for any reason these results could not be availed, the Respondent was required to file a report with the Court within 30 days, indicating the means the Petitioner should take so as to be eligible for graduation.
26. According to the Petitioner, despite these clear instructions, well known to the Respondent, it has failed to adhere to the terms of the order. For this reason, the Petitioner asserts that the Respondent is in contempt of this order.
27. This Court is satisfied that the Respondent has failed to uphold the terms of the Court order aforesaid. The Order specifically instructed that the Petitioner’s missing marks be availed in default of which a report was to be filed in Court in the manner expressly indicated in that order.
28. Throughout, the Respondent has been silent on the matter despite being fully aware of those orders. He has not even bothered to seek this Court’s indulgence if for some reason there were difficulties encountered in complying with the said order.
29. It is my humble conclusion that the Petitioner has demonstrated that the Respondent was aware of the terms of the order having served the Registrar Academics personally, however the Respondent has failed to comply with the same.
30. I do thus find that the Respondent to be in contempt of this Court’s order.
31. As was held in the South African Constitutional Court case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021)
“…orders and decisions issued by a court bind all persons to whom and organs of State to which they apply, and no person or organ of State may interfere, in any manner, with the functioning of the courts… The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced by all and sundry, including organs of State. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest…”
32. Further in Civil Application No. Nai 1 of 2017; Dr. Fred Matiang’i-The Cabinet Secretary, Ministry of Interior and Coordination of National Government vs Miguna Miguna and 4 others the Court of Appeal observed thus:
“… When Courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities…”
33. The Supreme Court in Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 41 (KLR) acknowledged that Courts have inherent power of the Court to punish for contempt by explaining thus:
“… Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. We note that the Contempt of Court Act having been declared unconstitutional in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR on November 9, 2018 the instructive provision remains section 5(1) of the Judicature Act which grants the High Court and the Court of Appeal the power to punish for contempt. It provides:(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 that power shall extend to upholding the authority and dignity of subordinate courts...”
34. In view of foregoing and having found one Prof. Bernand Kivunge guilty for contempt of Court, I direct that summons be issued for the said Prof. Benard Kivunge to appear before this Court personally on 5/11/2025 for purposes of being punished for the deliberate disobedience of this Court’s orders.
Dated, signed and delivered virtually at Nairobi this 23rd day of October, 2025.
………………………………………..
L N MUGAMBI
JUDGE
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