This application arises from orders of Hon. Lady Justice A C BETT, dated the 19.2.2024.
The background of the matter is that by the orders granted on the 19.2.2026, the judge granted the applicant physical custody of the children of the applicant and the respondent. The matter was fixed for mention on the 2.7.2026 for further directions and to confirm compliance.
The applicant has now brought this application dated 2.6.2026 seeking to have the respondent cited for contempt for failure to obey the orders issued by the judge.
The application is supported by the affidavit of the applicant wherein she deposed that the orders were served upon the respondent but that she has blatantly refused to comply. The application was duly served upon the respondent and an affidavit of service filed; however, the respondent has not responded.
DETERMINATION
This court is required to determine whether the respondent is in contempt of court.
It is generally understood that the purpose of contempt of court proceedings is to protect the integrity of the judicial system, ensure compliance with court orders, and uphold the rule of law. Contempt of court proceedings ensure that public confidence in the courts is maintained by penalising actions that obstruct justice, disrupt proceedings or defy judicial authority.
It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer L.J. In Hadkinson –v– Hadkinson [1952] ALL.E.R.567;
“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 even void. Lord Cottenham, L.C., said in Chuck –v– Cremer (1) (1) Coop. temp.Cott 342):’A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.....It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That, they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”
The question is therefore whether the respondent is in contempt of court. There is no dispute that the court order was served upon the respondent. Kenyan courts have gradually moved from the position that service of the order along with the penal notice must be a prerequisite before contempt can be proved. Kenya’s growing jurisprudence right from the court of appeal has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings.
In Shimmers Plaza Limited –v– National Bank of Kenya Limited (2015) KECA 945 KLR the court of appeal expressed itself as follows:
“Would the knowledge of the Judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case”.
In the matter before me, the respondent was duly served with a court order. There is no explanation why he has failed to comply with the court orders which on the face of it is un ambiguous.
The upshot of the foregoing is that the respondent is in contempt of court orders and I cannot decide otherwise. To do so will amount to abdication of my sacrosanct duty bestowed by the constitution to protect the dignity and authority of the court.
The result is that the application is allowed and the respondent is found in contempt of court orders. The respondent to appear before court for sentence once his mitigation is considered.
DATED, SIGNED AND DELIVERED THIS 13 th day of JULY 2026
D.O. ONYANGO
JUDGE
2
The background of the matter is that by the orders granted on the 19.2.2026, the judge granted the applicant physical custody of the children of the applicant and the respondent. The matter was fixed for mention on the 2.7.2026 for further directions and to confirm compliance.
The applicant has now brought this application dated 2.6.2026 seeking to have the respondent cited for contempt for failure to obey the orders issued by the judge.
The application is supported by the affidavit of the applicant wherein she deposed that the orders were served upon the respondent but that she has blatantly refused to comply. The application was duly served upon the respondent and an affidavit of service filed; however, the respondent has not responded.
DETERMINATION
This court is required to determine whether the respondent is in contempt of court.
It is generally understood that the purpose of contempt of court proceedings is to protect the integrity of the judicial system, ensure compliance with court orders, and uphold the rule of law. Contempt of court proceedings ensure that public confidence in the courts is maintained by penalising actions that obstruct justice, disrupt proceedings or defy judicial authority.
It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer L.J. In Hadkinson –v– Hadkinson [1952] ALL.E.R.567;
“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 even void. Lord Cottenham, L.C., said in Chuck –v– Cremer (1) (1) Coop. temp.Cott 342):’A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it.....It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That, they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.”
The question is therefore whether the respondent is in contempt of court. There is no dispute that the court order was served upon the respondent. Kenyan courts have gradually moved from the position that service of the order along with the penal notice must be a prerequisite before contempt can be proved. Kenya’s growing jurisprudence right from the court of appeal has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings.
In Shimmers Plaza Limited –v– National Bank of Kenya Limited (2015) KECA 945 KLR the court of appeal expressed itself as follows:
“Would the knowledge of the Judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behooves him/her to report back to the client all that transpired in court that has a bearing on the client’s case”.
In the matter before me, the respondent was duly served with a court order. There is no explanation why he has failed to comply with the court orders which on the face of it is un ambiguous.
The upshot of the foregoing is that the respondent is in contempt of court orders and I cannot decide otherwise. To do so will amount to abdication of my sacrosanct duty bestowed by the constitution to protect the dignity and authority of the court.
The result is that the application is allowed and the respondent is found in contempt of court orders. The respondent to appear before court for sentence once his mitigation is considered.
DATED, SIGNED AND DELIVERED THIS 13 th day of JULY 2026
D.O. ONYANGO
JUDGE
2