'1. Before me for determination is an application dated 11th June 2025. The application seeks for orders that;
a. Spent.
b. Spent.
c. This Honourable Court be pleased to issue orders of committal to civil jail against the Respondent for a term of six months for contempt of Court for having deliberately disobeyed orders of this Court issued on 4th May, 2025, 23rd May, 2025 and 5th June, 2025,
d. This Honourable Court be pleased to issue an order directing the Respondent to appear before this Honourable Court on a date to be appointed to show cause for his continued disobedience of Court orders
e. The costs of this Application be borne by the Respondent
f. Such further orders be made as the Court may deem fit and expedient. based on the following grounds:
2. The application is based on the grounds on the face of it and the annexed affidavit of Mr Akola John Otieno the Principal and Secretary of the Governing Council of Kisii National Polytechnic. He deponed that he is conversant with the facts of this case and hence competent to swear the affidavit . He told this court that on 30th April, 2025 the Governing Council instructed the Hon. Attorney General to file an application for stay of execution of the decree of the trial Court issued on 22nd April, 2025. And that he has have been advised by the State Counsel on record that on 4th May, 2025 this Honourable Court issued an order of status quo orders against execution of the decree of the trial Court whose pending interpartes hearing and determination of the Appellants’ Application dated 30th April, 2025. (Annexed herewith and marked AJO-1 is a copy of the Court Order dated 4th May, 2025) Further that the state counsel advised him that the status quo orders were extended suo moto by this Honourable Court on 23rd May, 2025 and 5th June, 2025 respectively. (Annexed herewith and marked AJO-2 a) and AJO-2 b) are copies of the Court Orders dated 23rd May, 2025 and 5th June, 2025) . The respondent proceeded to attach motor vehicles belonging to the applicant despite the orders being in force and hence on 11.6.25 the Governing Council instructed the Hon. Attorney General to file an application for contempt of Court against the Respondent . Also that on 12th June, 2025 this court ordered for unconditional release of the attached motor vehicles pending the hearing and determination of the said application. (Annexed herewith and marked AJO-3 is a copy of the Court Order dated 12th June, 2025) .Mr Akola further deponed that his counsel advised him that on 27th June, 2025 their application dated 30th April, 2025 was Mentioned and the status quo order was extended by this Honourable Court in the presence of the Respondent’s Advocate on record and the matter was then fixed for Mention on 3rd July, 2025. Also that on 3rd July, 2025 this Honourable Court extended the status quo order until 29th July, 2025 also in the presence of the Respondent’s Advocate on record and directed that both Applications shall be heard together by way of written submissions. Further that on 29th July, 2025, the status quo order was extended by this Honourable Court again in the presence of the Respondent’s Advocate on record and both applications were fixed for Ruling on 17th November, 2025.
3. He also stated that despite the fact that the respondent had personal knowledge of the existing status quo order, his advocate the Responded on record proceeded to initiate garnishee proceedings before the trial Court vide an application dated 7th August, 2025 seeking to attach the Appellants’ bank accounts in execution of the decree issued on 22nd April, 2025. (see annexuture AJO-4-copy of the Respondent’s application dated 7th August, 2025) Also the Respondent’s Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates deponed under paragraph 5 of his Affidavit in support of the application that there was no stay order halting the execution of the decree of the trial Court despite actively participating in the proceedings before this Honourable Court.
4. THAT on 25th August, 2025 he swore a Replying Affidavit in response to and opposition of the garnishee application before the trial Court highlighting the existence of the status quo order issued by this Honourable Court staying the execution of the decree of the trial Court. (Annexture AJO-5 -copy of my Replying Affidavit dated 25th August, 2025) . Further that he raised the issue of stay in his replying affidavit but the Learned trial Magistrate proceeded to issue directions on the Respondent’s garnishee application without considering his Affidavit on record together with the annextures attached thereto. He termed the garnishee proceedings the garnishee application filed before the trial Court by the same Advocate under the instructions of the Respondent as a blatant disobedience of the Orders of this Honourable Court and this undermines the dignity and authority of this Court. Also that due to the said contempt by the respondent and his counsel , their applications dated 30th April, 2025 and 11th June, 2025 which are coming up for Ruling on 17th November, 2025 together with the pending Appeal have been rendered nugatory and they are apprehensive that the Respondent and his Advocate shall proceed to attach the bank accounts of Kisii National Polytechnic and transfer the entire decretal amount of Kshs. 14, 981, 002. 20/= causing them to suffer irreparable loss and damage.
5. Mr Akola further deponed that he has been advised by his counsel on record that the Respondent’s Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates is guilty of perjury, material non – disclosure and forum shopping since he is well aware of the present Appeal, the pending Applications and the status quo orders issued by this Honourable Court. He asked this court to punish the said counsel and the respondent for contempt of court as the continued disobedience of Court Orders by the Respondent and his agents erodes public confidence in the administration of justice. He said that the instant application has been made without unreasonable delay and in the interest of substantive justice.
6. The respondent Morara Evans Nyangongo filed replying affidavit dated 20.6.25 in response to the application dated 11.6.25 . He said that Betico auctioneers received the instructions to execute from his counsel on 7.6.25 two days before the orders issued on 5.6.25 were served and lawfully seized the motor vehicles on 9.6.25 at 2.00pm. he annexed the execution report EMN -1 ). Also that the orders issued on 4.5.25 and subsequently extended on 23.5.25, 5.6.25 and 12.6.25 lapsed automatically 14 days after 4.5.25 under order 40 Rule (4) (2) of the civil procedure rules .Also that counsel for the Applicant admitted that the orders were served on 9.6.25 at 3.11PM in violation of order 40 Rule (4) (3) of the Civil procedure Rules . he said there was no disobedience of any orders herein. Also that Mr Akola filed the memorandum of appeal herein and his affidavit in his personal capacity as he had not sought authourity of the 2nd respondent to file the same and thus the orders are not contested by the 2nd appellant .he termed the application malicious and a delaying tactic. He said that Mr Akola was appointed irregularly as a principal of Kisii Polytechnic since his appointment was not through a competitive process. Also that the name of Tom Mulati appears as a party and so there is confusion as to who is the principal .
7. I have carefully considered the application dated 11.6.25 and the issues for determination are as follows :
a. Whether Mr Akalo the deponent of the supporting affidavit dated 11.6.25 had the capacity to swear the affidavit dated 11.6.25
b. Whether the threshold for contempt has been met on court orders dated 4.5.25, and extended on 23.5.25 and 5.6.25 and if so
c. Whether the respondent should be cited for contempt of court .
8. On whether Mr Akalo had capacity to swear the affidavit dated 11.6.25 , the respondents have challenged the capacity Mr Akalo John the deponent of the supporting affidavit herein had the capacity to swear the affidavit herein , the respondent said he had no such capacity as Mr Tom Mulati was sued in person and that Mr Akalo was not appointed procedurally as the principal of Kisii Polytechnic. The applicant submitted that Mr Akalo is the current Principal of the said Polytechnic . I have seen the pleadings herein and it is clear that Mr Tom Mulati was sued as the Principal of Kisii Natioanl polytechnic Polytechnic It is admitted that Mr Akalo replaced Mr Mulati as the Principal and the procedure for his appointment is not for this court to determine as it is within the Jurisdiction of Employment and Labout Relations Court , There was therefore no need to file appointment letter by Mr Akalo. Mr Akalo is thus properly in these proceedings as the successor of the former Principal
16. On whether the applicant met the threshold for grant of contempt of court order, Section 4 of the Contempt of Court Act defines contempt of court in civil matters as follows ;
(1)Contempt of court includes—(a)civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court; 5. Section 5 of the Act confers jurisdiction to the superior courts to punish for contempt. The same provides that-
Every superior court shall have power to—(a)punish for contempt of court on the face of the court;(b)punish for contempt of court; and(c)uphold the dignity and authority of subordinate courts.
The standard of proof of contempt of court was set in the case of in Gatharia K. Mutikika vs Baharini Farm Ltd (1985) KLR 227, the court explained the standard of proof for civil contempt, holding that:- In Re Breamblevale Ltd [1969] 3 All ER 1062, where Lord Denning MR. (as he then was), at page 1063, had this to say, "A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time— honoured phrase, it must be proved beyond reasonable doubt" The Court of Appeal stated that; "With the greatest possible respect to that eminent English judge, that proof is much too high for an offence "of a criminal character" and, ipso facto, not a criminal offence properly so defined. In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi — criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved ''with such strictness of proof ... as is consistent with the gravity of the charge".
10. I have seen the record herein and it indicates that on 4.5.25 Justice W. Okwany issued interim stay of execution in application dated 30.4.25 pending interpartes hearing of the said application and she set the matter for mention on 23.5.25 before this court . Come of 23.5.25 I was unwell and Hon Justice Magare Stood in for me and extended the status quo orders to 6.6.25. On 6.6.25 was declared a public holiday and on 5.6.25 this court extended interim in all filles which were schedule for hearing and mention on that day including this file on it’s own motion The orders herein were extended to 27.6.25. . The Applicant alleges that the respondent in breach of that order proceeded to instruct Betico auctioneers to attach the vehicles of the applicant and the said auctioneers proceeded to attach vehicles belonging to the applicant . The respondent says that there was no court orders in place at the material time as the orders dated 4.5.25 lapsed automatically by operation of order 40 Rule 3 of the Civil procedure Rules. I have looked at Order 40 Rule 3 and I note that it applies to injunctions and not stay of execution which is provided for under Order 42 Rule 6 of the Civil procedure Rules .The Applicant herein sought interim stay of execution under Order 42 Rule 6 of the Civil procedure Rules and that is what was granted on 4.5.25. The argument of the respondent that the orders has lapsed does not hold any water . The respondent also argued that the status quo which was extended by the court on 23.5.25 and 5.6.25 was vague and thus could not be understood . He cited the Supreme court case of Bia Tosha Distributors Limited vs Kenya Breweries Limited (Petition on 15 of 2020) 2023 KESC 14 (KLR ) dated 17.2.23 also Mutitika vs Baharini Farm Limited (1985) KLR 229 I find that the statue quo was clear that it was staying the execution of the lower court judgment pending interpartes hearing and determination of the application dated 30.4.25 interpartes . The respondents said that the orders extending ng the interim orders were served upon them on 9.6.25 at 3.11PM and they annexed a copy of email extract from counsel for the applicant herein. This is not challenged . It is not clear whether the extension of the orders was communicated to the parties by the Deputy registrar after the fact . I will give the respondents a benefit of doubt on the orders dated 23.5.25 and 5.6.25 for this reason . I find that contempt has not been proved against the respondents in respect to the status quo orders dated orders dated 23.5.25 cited in the application dated 11.6.25 . There is thus no need to cite the respondents for contempt or the said orders . The application dated 11.6.25 must thus fail .
11. On the application dated 16.9.25 , the same seeks that ;
1. Spent
2. This Honourable Court be pleased to issue an order setting aside the garnishee proceedings and all consequential orders issued thereto by the trial Court on diverse dates between 7th August, 2025 and 16th September, 2025 concerning the execution of the decree issued on 22nd April, 2025 pending the hearing and determination of this application.
3. This Honourable Court be pleased to issue an order staying any further proceedings before the trial Court concerning the execution of the decree issued on 22nd April, 2025 pending the hearing and determination of this application and appeal.
4. This Honourable Court be pleased to issue an order directing the Respondent and his Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates to appear before this Honourable Court on a date to be appointed to show cause for their continued disobedience of Court orders.
5. This Honourable Court be pleased to issue orders of committal to civil jail against the Respondent and his Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates for a term of six months each for contempt of Court for having deliberately disobeyed orders of this Court.
6.The costs of this Application be borne by the Respondent.
7. Such further orders be made as the Court may deem fit and expedient.
12. The application is based on the following grounds is based on the similar grounds as those of the application dated 11.6.25 save that the applicants added that :That the status quo orders dated 4.5.25 were extended by this Honourable Court on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 respectively. Also that on 11th June, 2025 the Appellants filed an Application for contempt of Court against the Respondent for attaching their motor vehicles in disobedience of the status quo orders in place. On 12.6.25 this court issued 12th June, 2025 for the unconditional release of the attached motor vehicles pending the hearing and determination of the said application and directed on 3rd July, 2025 that the same shall be heard together with the Appellants'' Application dated 30th April, 2025.On 29th July, 2025 when the matter was scheduled for Mention, the status quo order was extended by this Honourable Court in the presence of the Respondent''s Advocate on record and both applications were fixed for Ruling on 17th November, 2025. Further that despite having prior notice and personal knowledge of the existing status quo order, the Respondent''s Advocate on record proceeded to initiate garnishee proceedings before the trial Court vide an application dated 7th August, 2025 seeking to attach the Appellants'' bank accounts in execution of the decree issued on 22nd April, 2025. He argued that the garnishee application filed before the trial Court by the same Advocate under the instructions of the Respondent is in blatant disobedience of the Orders of this Honourable Court aforementioned and undermines the dignity and authority of this Court which ought to be respected by all parties.That since the Respondent has progressed the impugned execution in total disregard of lawful Court Orders issued by a Court of superior jurisdiction prohibiting the same then the Appellants Applications dated 30th April, 2025 and 11th June, 2025 which are coming up for Ruling on 17th November, 2025 together with the pending Appeal have been rendered nugatory. Also that the Appellants are apprehensive that the Respondent shall proceed to attach the bank accounts of Kisii National Polytechnic and transfer the entire decretal amount of Kshs. 14, 981, 002. 20/ causing them to suffer irreparable loss and damage. They termed the actions of t the Respondents to be contemptuous that and this Honourable Court is vested with supervisory jurisdiction to set aside the said proceedings and punish the contemnors. They stated that the continued disobedience of Court Orders by the Respondent and his agents erodes public confidence in the administration of justice.
13. The applicants submitted that the respondent blatanly disobeyed court orders and it is important that that this court acts to ensure that its dignity is upheld at al times . They cited the cases on the threshold of Contempt of court;
i. Samuel M.N Mweru & Another vs National Lands Commission (2020) KEHC 9233 (KLR) . where the court cited the the book Contempt in Modern New Zealand[ where the author 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:- (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.’’
ii.. Also the case Sheila Casatt Issenburgr & SAnother vs Anthony Muchacha Kinyanjui(2021) KEHC 5692(KLR).
iii. Shimmers Plaza Limited vs National Bank of Kenya Limited (2015) KECA 945 (KLR).
14. The respondents submitted that that Hon Attorney general is not properly on record as the 2nd applicant is not Government within the meaning of Article 156(4) of the Constitution of Kenya which provides that the Attorney General is the principal legal adviser to the national government .Also that Kisii National Polytechnic is a body corporate has a perpetual succession with a common seal with a right to sue and be sued . Respondents submitted that Article 260 of the Constitution of Kenya defines the word state as follows;
"State", when used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution. It goes further to define a state organ as follows;
"State organ" means a commission, office, agency or other body established under this Constitution.
15. They submitted that Kisii National polytechnic is not a state organ or Government under Article 260 of the Constitution as it is a body corporate with perpetual succession and a common seal with rights to sue and be sued in its own name . Also that the Honourable Attorney General can only represent the National Government in civil matters in court where it is a party as per the Article 156(4)(b) which provides as follows;
The Attorney-General—
(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
16. They also relied on the case of LRMG Proprietary Limited v
JKUAT Enterprises Limited (Miscellaneous Application E852 of 2021) [2024] KEHC 886 (KLR) (Commercial and Tax) (30 January 2024) addressed itself on this question. At paragraph 16 and 17 of the ruling, the court stated as follows;
Section 21(4) of the Government Proceedings Act provides as follows:
16―Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no persons shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such of any money or costs.
17.My reading of the above section is that for any party to benefit from the protection in execution proceedings accorded by section 21(4) of the Act it must fall within the description of government, a government department or an officer of the government. There is sufficient jurisprudence affirming that state corporations, although controlled and managed by government are not government, a government department or an officer of the government as contemplated by the Act. They are independent legal persons and cannot invoke section 21(4) as a bar to execution.
They also cited the case of Ikon Prints Media Company
Limited V Kenya National Highways Authority & 2 Others, [2015] eKLR and Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 Others, [supra] eKLR, which also buttressed the position that State Corporation are not subject to the Government Proceedings act and are not Government as they are independent juridical bodies which are capable of suing and being sued.
17. The respondents submitted that the status quo orders herein were not clear and thus unenforceable as was held in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) where it was held that ‘’If indeed the courts had to use the term status quo, it was only practical that the same be accompanied by the descriptive particulars of the exact position that the court seeks to preserve. That would avoid situations like the instant case where each party was left to its own perception as to what the court meant. That ultimately eroded the very essence of court intervention and subjected the court to undesirable controversy regarding compliance with the said order…..An order to maintain the status quo could mean anything, everything and nothing. Unless it was clearly spelt out in precise and unambiguous terms what the status at a particular point in time was, it was a recipe for frustration and embarrassment for the court to simply order, without more, that the status quo be maintained”
18. I have carefully considered the application , the response, the able submissions by both counsel . The issues for determination are as follows :
a. Whether the attorney general has locus standi to appear for the applicants in the proceedings before this court.
b. Whether the application meets the threshold for contempt of court
19. On whether the attorney general has locus standi to appear for the applicants in the proceedings before this court. It is clear as demonstrated herein, Kisii National Polytechnic is a body cooperate with perpetual succession and the capacity to sue or be sued. It is a separate legal entity from the Government . The 2nd respondent is a Government entity but it has capacity to sue and be sued in its name . It is not disputed that the Attorney General is the chief Government advisor under Article 156(4)(b) of the constitution of Kenya and it is mandated to represent the National government in civil matters .
20. However in this case the Honourable Attorney general appeared for the respondents from 19.8.24 in the lower court without any objection and the respondents cannot raise this issue at this stage of proceedings as they are estopped from doing so having acquiesced to the same .
21. On whether the application meets the threshold for contempt of court , the applicants told this court that the respondents blatantly disobeyed the orders of this court date 4.5.25, and extended on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 which they were well aware of . The respondent denied this and said the orders were not clear , the same had automatically expired by law and that they were not aware of the same .
22. In the cited case of Gatharia K. Mutikika – v Baharini Farm Ltd [1985] KLR 227 it was held 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 heard to process 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 part 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.” (own emphasis)
23. Similarly, in the Oilfield Movers ltd – v – Zahara oil & gas limited [2020]eKLR the court stated -
“It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person‟s liberty…..” Also in the case of Ex parte Langley 1879, 13
Ch D. 110 (C.A), where Thesiger L.J stated as follows. at p. 119 it was held that :
“…the question in each case, and depending upon the particular circumstance of the case, must be, was there or was there not such a notice given to the person who is charged with contempt of Court that you can infer from the facts that he had notice in fact of the order which has been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt.”
24. The standard of proof of contempt is that of beyond any reasonable doubt as was held in the said cited cases .and must be proved that ;
i. The respondent committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding the act .
25. I have carefully considered the application the response , submissions by the parties and the cited cases . The applicants told this court that the orders of status quo were issued on 4.5.25 on the motion dated 30.4.25 and extended on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 respectively. In the order dated 4.5.25 issued by Hon Lady Justice Wilfrida Okwany on the application dated 30.4.25 in paragraph 2 is that ‘’ The status Quo obtaining in respect to execution of the decree be maintained until the mention date ‘’. The mention date as per the said order was 23.5.25. The said status quo orders were extended on 23rd May, 2025, 5th June, 2025, On 27th June 2025, 3.7.25 and 29.7.25 . (AJO -1, AJO-2a and 2b, ) in the presence of Mr Masolo advocate (2nd respondent )for the 1st respondent . Though the respondents argued that the status quo orders were not clear, The said status quo orders dated 4.5.25 were unambiguous and the trace of their extension is also on record . The cited Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020 is thus distinguishable from this case .Mr Masolo advocate then went ahead and moved the court by way of garnishee proceedings vide chamber summons dated 7.8.2025 supported by the annexed affidavit of Mr Andrew Nyongesa Masolo Advocate .(AJO-4) and the replying affidavit by the applicant(AJO-5)
26. I have perused the lower court file and I note that garnishee order absolute were granted on 16.9.25 . It is clear that the respondents were aware of the orders dated 4.5.25 and extended 23rd May, 2025, 5th June, 2025, On 27th June 2025, 3.7.25 and 29.7.25 and that the orders dated On 27th June 2025, 3.7.25 and 29.7.25 were issued in the presence of Mr Masolo and yet he proceeded to mount the application dated 7.8.25 and even swore and affidavit in its support. The allegations that the orders were not clear, were not in f
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a. Spent.
b. Spent.
c. This Honourable Court be pleased to issue orders of committal to civil jail against the Respondent for a term of six months for contempt of Court for having deliberately disobeyed orders of this Court issued on 4th May, 2025, 23rd May, 2025 and 5th June, 2025,
d. This Honourable Court be pleased to issue an order directing the Respondent to appear before this Honourable Court on a date to be appointed to show cause for his continued disobedience of Court orders
e. The costs of this Application be borne by the Respondent
f. Such further orders be made as the Court may deem fit and expedient. based on the following grounds:
2. The application is based on the grounds on the face of it and the annexed affidavit of Mr Akola John Otieno the Principal and Secretary of the Governing Council of Kisii National Polytechnic. He deponed that he is conversant with the facts of this case and hence competent to swear the affidavit . He told this court that on 30th April, 2025 the Governing Council instructed the Hon. Attorney General to file an application for stay of execution of the decree of the trial Court issued on 22nd April, 2025. And that he has have been advised by the State Counsel on record that on 4th May, 2025 this Honourable Court issued an order of status quo orders against execution of the decree of the trial Court whose pending interpartes hearing and determination of the Appellants’ Application dated 30th April, 2025. (Annexed herewith and marked AJO-1 is a copy of the Court Order dated 4th May, 2025) Further that the state counsel advised him that the status quo orders were extended suo moto by this Honourable Court on 23rd May, 2025 and 5th June, 2025 respectively. (Annexed herewith and marked AJO-2 a) and AJO-2 b) are copies of the Court Orders dated 23rd May, 2025 and 5th June, 2025) . The respondent proceeded to attach motor vehicles belonging to the applicant despite the orders being in force and hence on 11.6.25 the Governing Council instructed the Hon. Attorney General to file an application for contempt of Court against the Respondent . Also that on 12th June, 2025 this court ordered for unconditional release of the attached motor vehicles pending the hearing and determination of the said application. (Annexed herewith and marked AJO-3 is a copy of the Court Order dated 12th June, 2025) .Mr Akola further deponed that his counsel advised him that on 27th June, 2025 their application dated 30th April, 2025 was Mentioned and the status quo order was extended by this Honourable Court in the presence of the Respondent’s Advocate on record and the matter was then fixed for Mention on 3rd July, 2025. Also that on 3rd July, 2025 this Honourable Court extended the status quo order until 29th July, 2025 also in the presence of the Respondent’s Advocate on record and directed that both Applications shall be heard together by way of written submissions. Further that on 29th July, 2025, the status quo order was extended by this Honourable Court again in the presence of the Respondent’s Advocate on record and both applications were fixed for Ruling on 17th November, 2025.
3. He also stated that despite the fact that the respondent had personal knowledge of the existing status quo order, his advocate the Responded on record proceeded to initiate garnishee proceedings before the trial Court vide an application dated 7th August, 2025 seeking to attach the Appellants’ bank accounts in execution of the decree issued on 22nd April, 2025. (see annexuture AJO-4-copy of the Respondent’s application dated 7th August, 2025) Also the Respondent’s Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates deponed under paragraph 5 of his Affidavit in support of the application that there was no stay order halting the execution of the decree of the trial Court despite actively participating in the proceedings before this Honourable Court.
4. THAT on 25th August, 2025 he swore a Replying Affidavit in response to and opposition of the garnishee application before the trial Court highlighting the existence of the status quo order issued by this Honourable Court staying the execution of the decree of the trial Court. (Annexture AJO-5 -copy of my Replying Affidavit dated 25th August, 2025) . Further that he raised the issue of stay in his replying affidavit but the Learned trial Magistrate proceeded to issue directions on the Respondent’s garnishee application without considering his Affidavit on record together with the annextures attached thereto. He termed the garnishee proceedings the garnishee application filed before the trial Court by the same Advocate under the instructions of the Respondent as a blatant disobedience of the Orders of this Honourable Court and this undermines the dignity and authority of this Court. Also that due to the said contempt by the respondent and his counsel , their applications dated 30th April, 2025 and 11th June, 2025 which are coming up for Ruling on 17th November, 2025 together with the pending Appeal have been rendered nugatory and they are apprehensive that the Respondent and his Advocate shall proceed to attach the bank accounts of Kisii National Polytechnic and transfer the entire decretal amount of Kshs. 14, 981, 002. 20/= causing them to suffer irreparable loss and damage.
5. Mr Akola further deponed that he has been advised by his counsel on record that the Respondent’s Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates is guilty of perjury, material non – disclosure and forum shopping since he is well aware of the present Appeal, the pending Applications and the status quo orders issued by this Honourable Court. He asked this court to punish the said counsel and the respondent for contempt of court as the continued disobedience of Court Orders by the Respondent and his agents erodes public confidence in the administration of justice. He said that the instant application has been made without unreasonable delay and in the interest of substantive justice.
6. The respondent Morara Evans Nyangongo filed replying affidavit dated 20.6.25 in response to the application dated 11.6.25 . He said that Betico auctioneers received the instructions to execute from his counsel on 7.6.25 two days before the orders issued on 5.6.25 were served and lawfully seized the motor vehicles on 9.6.25 at 2.00pm. he annexed the execution report EMN -1 ). Also that the orders issued on 4.5.25 and subsequently extended on 23.5.25, 5.6.25 and 12.6.25 lapsed automatically 14 days after 4.5.25 under order 40 Rule (4) (2) of the civil procedure rules .Also that counsel for the Applicant admitted that the orders were served on 9.6.25 at 3.11PM in violation of order 40 Rule (4) (3) of the Civil procedure Rules . he said there was no disobedience of any orders herein. Also that Mr Akola filed the memorandum of appeal herein and his affidavit in his personal capacity as he had not sought authourity of the 2nd respondent to file the same and thus the orders are not contested by the 2nd appellant .he termed the application malicious and a delaying tactic. He said that Mr Akola was appointed irregularly as a principal of Kisii Polytechnic since his appointment was not through a competitive process. Also that the name of Tom Mulati appears as a party and so there is confusion as to who is the principal .
7. I have carefully considered the application dated 11.6.25 and the issues for determination are as follows :
a. Whether Mr Akalo the deponent of the supporting affidavit dated 11.6.25 had the capacity to swear the affidavit dated 11.6.25
b. Whether the threshold for contempt has been met on court orders dated 4.5.25, and extended on 23.5.25 and 5.6.25 and if so
c. Whether the respondent should be cited for contempt of court .
8. On whether Mr Akalo had capacity to swear the affidavit dated 11.6.25 , the respondents have challenged the capacity Mr Akalo John the deponent of the supporting affidavit herein had the capacity to swear the affidavit herein , the respondent said he had no such capacity as Mr Tom Mulati was sued in person and that Mr Akalo was not appointed procedurally as the principal of Kisii Polytechnic. The applicant submitted that Mr Akalo is the current Principal of the said Polytechnic . I have seen the pleadings herein and it is clear that Mr Tom Mulati was sued as the Principal of Kisii Natioanl polytechnic Polytechnic It is admitted that Mr Akalo replaced Mr Mulati as the Principal and the procedure for his appointment is not for this court to determine as it is within the Jurisdiction of Employment and Labout Relations Court , There was therefore no need to file appointment letter by Mr Akalo. Mr Akalo is thus properly in these proceedings as the successor of the former Principal
16. On whether the applicant met the threshold for grant of contempt of court order, Section 4 of the Contempt of Court Act defines contempt of court in civil matters as follows ;
(1)Contempt of court includes—(a)civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court; 5. Section 5 of the Act confers jurisdiction to the superior courts to punish for contempt. The same provides that-
Every superior court shall have power to—(a)punish for contempt of court on the face of the court;(b)punish for contempt of court; and(c)uphold the dignity and authority of subordinate courts.
The standard of proof of contempt of court was set in the case of in Gatharia K. Mutikika vs Baharini Farm Ltd (1985) KLR 227, the court explained the standard of proof for civil contempt, holding that:- In Re Breamblevale Ltd [1969] 3 All ER 1062, where Lord Denning MR. (as he then was), at page 1063, had this to say, "A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time— honoured phrase, it must be proved beyond reasonable doubt" The Court of Appeal stated that; "With the greatest possible respect to that eminent English judge, that proof is much too high for an offence "of a criminal character" and, ipso facto, not a criminal offence properly so defined. In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi — criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved ''with such strictness of proof ... as is consistent with the gravity of the charge".
10. I have seen the record herein and it indicates that on 4.5.25 Justice W. Okwany issued interim stay of execution in application dated 30.4.25 pending interpartes hearing of the said application and she set the matter for mention on 23.5.25 before this court . Come of 23.5.25 I was unwell and Hon Justice Magare Stood in for me and extended the status quo orders to 6.6.25. On 6.6.25 was declared a public holiday and on 5.6.25 this court extended interim in all filles which were schedule for hearing and mention on that day including this file on it’s own motion The orders herein were extended to 27.6.25. . The Applicant alleges that the respondent in breach of that order proceeded to instruct Betico auctioneers to attach the vehicles of the applicant and the said auctioneers proceeded to attach vehicles belonging to the applicant . The respondent says that there was no court orders in place at the material time as the orders dated 4.5.25 lapsed automatically by operation of order 40 Rule 3 of the Civil procedure Rules. I have looked at Order 40 Rule 3 and I note that it applies to injunctions and not stay of execution which is provided for under Order 42 Rule 6 of the Civil procedure Rules .The Applicant herein sought interim stay of execution under Order 42 Rule 6 of the Civil procedure Rules and that is what was granted on 4.5.25. The argument of the respondent that the orders has lapsed does not hold any water . The respondent also argued that the status quo which was extended by the court on 23.5.25 and 5.6.25 was vague and thus could not be understood . He cited the Supreme court case of Bia Tosha Distributors Limited vs Kenya Breweries Limited (Petition on 15 of 2020) 2023 KESC 14 (KLR ) dated 17.2.23 also Mutitika vs Baharini Farm Limited (1985) KLR 229 I find that the statue quo was clear that it was staying the execution of the lower court judgment pending interpartes hearing and determination of the application dated 30.4.25 interpartes . The respondents said that the orders extending ng the interim orders were served upon them on 9.6.25 at 3.11PM and they annexed a copy of email extract from counsel for the applicant herein. This is not challenged . It is not clear whether the extension of the orders was communicated to the parties by the Deputy registrar after the fact . I will give the respondents a benefit of doubt on the orders dated 23.5.25 and 5.6.25 for this reason . I find that contempt has not been proved against the respondents in respect to the status quo orders dated orders dated 23.5.25 cited in the application dated 11.6.25 . There is thus no need to cite the respondents for contempt or the said orders . The application dated 11.6.25 must thus fail .
11. On the application dated 16.9.25 , the same seeks that ;
1. Spent
2. This Honourable Court be pleased to issue an order setting aside the garnishee proceedings and all consequential orders issued thereto by the trial Court on diverse dates between 7th August, 2025 and 16th September, 2025 concerning the execution of the decree issued on 22nd April, 2025 pending the hearing and determination of this application.
3. This Honourable Court be pleased to issue an order staying any further proceedings before the trial Court concerning the execution of the decree issued on 22nd April, 2025 pending the hearing and determination of this application and appeal.
4. This Honourable Court be pleased to issue an order directing the Respondent and his Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates to appear before this Honourable Court on a date to be appointed to show cause for their continued disobedience of Court orders.
5. This Honourable Court be pleased to issue orders of committal to civil jail against the Respondent and his Advocate on record Mr. Andrew Nyongesa Masolo practicing under the firm of J. M. Nyagwencha & Company Advocates for a term of six months each for contempt of Court for having deliberately disobeyed orders of this Court.
6.The costs of this Application be borne by the Respondent.
7. Such further orders be made as the Court may deem fit and expedient.
12. The application is based on the following grounds is based on the similar grounds as those of the application dated 11.6.25 save that the applicants added that :That the status quo orders dated 4.5.25 were extended by this Honourable Court on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 respectively. Also that on 11th June, 2025 the Appellants filed an Application for contempt of Court against the Respondent for attaching their motor vehicles in disobedience of the status quo orders in place. On 12.6.25 this court issued 12th June, 2025 for the unconditional release of the attached motor vehicles pending the hearing and determination of the said application and directed on 3rd July, 2025 that the same shall be heard together with the Appellants'' Application dated 30th April, 2025.On 29th July, 2025 when the matter was scheduled for Mention, the status quo order was extended by this Honourable Court in the presence of the Respondent''s Advocate on record and both applications were fixed for Ruling on 17th November, 2025. Further that despite having prior notice and personal knowledge of the existing status quo order, the Respondent''s Advocate on record proceeded to initiate garnishee proceedings before the trial Court vide an application dated 7th August, 2025 seeking to attach the Appellants'' bank accounts in execution of the decree issued on 22nd April, 2025. He argued that the garnishee application filed before the trial Court by the same Advocate under the instructions of the Respondent is in blatant disobedience of the Orders of this Honourable Court aforementioned and undermines the dignity and authority of this Court which ought to be respected by all parties.That since the Respondent has progressed the impugned execution in total disregard of lawful Court Orders issued by a Court of superior jurisdiction prohibiting the same then the Appellants Applications dated 30th April, 2025 and 11th June, 2025 which are coming up for Ruling on 17th November, 2025 together with the pending Appeal have been rendered nugatory. Also that the Appellants are apprehensive that the Respondent shall proceed to attach the bank accounts of Kisii National Polytechnic and transfer the entire decretal amount of Kshs. 14, 981, 002. 20/ causing them to suffer irreparable loss and damage. They termed the actions of t the Respondents to be contemptuous that and this Honourable Court is vested with supervisory jurisdiction to set aside the said proceedings and punish the contemnors. They stated that the continued disobedience of Court Orders by the Respondent and his agents erodes public confidence in the administration of justice.
13. The applicants submitted that the respondent blatanly disobeyed court orders and it is important that that this court acts to ensure that its dignity is upheld at al times . They cited the cases on the threshold of Contempt of court;
i. Samuel M.N Mweru & Another vs National Lands Commission (2020) KEHC 9233 (KLR) . where the court cited the the book Contempt in Modern New Zealand[ where the author 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:- (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.’’
ii.. Also the case Sheila Casatt Issenburgr & SAnother vs Anthony Muchacha Kinyanjui(2021) KEHC 5692(KLR).
iii. Shimmers Plaza Limited vs National Bank of Kenya Limited (2015) KECA 945 (KLR).
14. The respondents submitted that that Hon Attorney general is not properly on record as the 2nd applicant is not Government within the meaning of Article 156(4) of the Constitution of Kenya which provides that the Attorney General is the principal legal adviser to the national government .Also that Kisii National Polytechnic is a body corporate has a perpetual succession with a common seal with a right to sue and be sued . Respondents submitted that Article 260 of the Constitution of Kenya defines the word state as follows;
"State", when used as a noun, means the collectivity of offices, organs and other entities comprising the government of the Republic under this Constitution. It goes further to define a state organ as follows;
"State organ" means a commission, office, agency or other body established under this Constitution.
15. They submitted that Kisii National polytechnic is not a state organ or Government under Article 260 of the Constitution as it is a body corporate with perpetual succession and a common seal with rights to sue and be sued in its own name . Also that the Honourable Attorney General can only represent the National Government in civil matters in court where it is a party as per the Article 156(4)(b) which provides as follows;
The Attorney-General—
(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.
16. They also relied on the case of LRMG Proprietary Limited v
JKUAT Enterprises Limited (Miscellaneous Application E852 of 2021) [2024] KEHC 886 (KLR) (Commercial and Tax) (30 January 2024) addressed itself on this question. At paragraph 16 and 17 of the ruling, the court stated as follows;
Section 21(4) of the Government Proceedings Act provides as follows:
16―Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no persons shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such of any money or costs.
17.My reading of the above section is that for any party to benefit from the protection in execution proceedings accorded by section 21(4) of the Act it must fall within the description of government, a government department or an officer of the government. There is sufficient jurisprudence affirming that state corporations, although controlled and managed by government are not government, a government department or an officer of the government as contemplated by the Act. They are independent legal persons and cannot invoke section 21(4) as a bar to execution.
They also cited the case of Ikon Prints Media Company
Limited V Kenya National Highways Authority & 2 Others, [2015] eKLR and Greenstar Systems Limited v Kenyatta International Convention Centre (KICC) & 2 Others, [supra] eKLR, which also buttressed the position that State Corporation are not subject to the Government Proceedings act and are not Government as they are independent juridical bodies which are capable of suing and being sued.
17. The respondents submitted that the status quo orders herein were not clear and thus unenforceable as was held in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020) where it was held that ‘’If indeed the courts had to use the term status quo, it was only practical that the same be accompanied by the descriptive particulars of the exact position that the court seeks to preserve. That would avoid situations like the instant case where each party was left to its own perception as to what the court meant. That ultimately eroded the very essence of court intervention and subjected the court to undesirable controversy regarding compliance with the said order…..An order to maintain the status quo could mean anything, everything and nothing. Unless it was clearly spelt out in precise and unambiguous terms what the status at a particular point in time was, it was a recipe for frustration and embarrassment for the court to simply order, without more, that the status quo be maintained”
18. I have carefully considered the application , the response, the able submissions by both counsel . The issues for determination are as follows :
a. Whether the attorney general has locus standi to appear for the applicants in the proceedings before this court.
b. Whether the application meets the threshold for contempt of court
19. On whether the attorney general has locus standi to appear for the applicants in the proceedings before this court. It is clear as demonstrated herein, Kisii National Polytechnic is a body cooperate with perpetual succession and the capacity to sue or be sued. It is a separate legal entity from the Government . The 2nd respondent is a Government entity but it has capacity to sue and be sued in its name . It is not disputed that the Attorney General is the chief Government advisor under Article 156(4)(b) of the constitution of Kenya and it is mandated to represent the National government in civil matters .
20. However in this case the Honourable Attorney general appeared for the respondents from 19.8.24 in the lower court without any objection and the respondents cannot raise this issue at this stage of proceedings as they are estopped from doing so having acquiesced to the same .
21. On whether the application meets the threshold for contempt of court , the applicants told this court that the respondents blatantly disobeyed the orders of this court date 4.5.25, and extended on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 which they were well aware of . The respondent denied this and said the orders were not clear , the same had automatically expired by law and that they were not aware of the same .
22. In the cited case of Gatharia K. Mutikika – v Baharini Farm Ltd [1985] KLR 227 it was held 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 heard to process 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 part 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.” (own emphasis)
23. Similarly, in the Oilfield Movers ltd – v – Zahara oil & gas limited [2020]eKLR the court stated -
“It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person‟s liberty…..” Also in the case of Ex parte Langley 1879, 13
Ch D. 110 (C.A), where Thesiger L.J stated as follows. at p. 119 it was held that :
“…the question in each case, and depending upon the particular circumstance of the case, must be, was there or was there not such a notice given to the person who is charged with contempt of Court that you can infer from the facts that he had notice in fact of the order which has been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond reasonable doubt.”
24. The standard of proof of contempt is that of beyond any reasonable doubt as was held in the said cited cases .and must be proved that ;
i. The respondent committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding the act .
25. I have carefully considered the application the response , submissions by the parties and the cited cases . The applicants told this court that the orders of status quo were issued on 4.5.25 on the motion dated 30.4.25 and extended on 23rd May, 2025, 5th June, 2025, 27th June, 2025, 3rd July, 2025 and 29th July, 2025 respectively. In the order dated 4.5.25 issued by Hon Lady Justice Wilfrida Okwany on the application dated 30.4.25 in paragraph 2 is that ‘’ The status Quo obtaining in respect to execution of the decree be maintained until the mention date ‘’. The mention date as per the said order was 23.5.25. The said status quo orders were extended on 23rd May, 2025, 5th June, 2025, On 27th June 2025, 3.7.25 and 29.7.25 . (AJO -1, AJO-2a and 2b, ) in the presence of Mr Masolo advocate (2nd respondent )for the 1st respondent . Though the respondents argued that the status quo orders were not clear, The said status quo orders dated 4.5.25 were unambiguous and the trace of their extension is also on record . The cited Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others (Petition 15 of 2020 is thus distinguishable from this case .Mr Masolo advocate then went ahead and moved the court by way of garnishee proceedings vide chamber summons dated 7.8.2025 supported by the annexed affidavit of Mr Andrew Nyongesa Masolo Advocate .(AJO-4) and the replying affidavit by the applicant(AJO-5)
26. I have perused the lower court file and I note that garnishee order absolute were granted on 16.9.25 . It is clear that the respondents were aware of the orders dated 4.5.25 and extended 23rd May, 2025, 5th June, 2025, On 27th June 2025, 3.7.25 and 29.7.25 and that the orders dated On 27th June 2025, 3.7.25 and 29.7.25 were issued in the presence of Mr Masolo and yet he proceeded to mount the application dated 7.8.25 and even swore and affidavit in its support. The allegations that the orders were not clear, were not in f
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