Introduction
1. Before this Court is the Notice of Motion Application dated 26th February 2026, brought by the Petitioner, Zuchero Trading Limited. The Application seeks to have Mr Calistus K Efukho, the Acting Director General of the 3rd Respondent, and Dr Lilian Nyawanda, the Commissioner of Customs and Border Control of the 5th Respondent, cited for contempt of the orders of this Honourable Court issued on 5th February 2026, and committed to civil jail for a term not exceeding six (6) months and/or fined Kes 5,000,000, for their alleged deliberate failure to comply with those orders.
2. The application arises from the continued detention at the Port of Mombasa of a consignment of 9,288 metric tonnes of rice imported by the Applicant pursuant to Gazette Notice No. 10353, which authorised the duty-free importation of 500,000 metric tonnes of Grade One rice for the period from 28th July 2025 to 31st December 2025 under tender reference KNTC/TENDER/IMPORT/003/2025-2026.
The Applicant’s Case
3. On 5th February 2026, pending the inter partes hearing of the Applicant’s Notice of Motion dated 4th February 2026, the court granted interim orders in terms of Prayers b) and c) of that application, which I outline below:
b) THAT in the interim, this honourable court be pleased to issue an order compelling the 3rd Respondent to issue the sought duty-free import Clearance Permit and codes on KENTRADE facilitation platform (TPF) enabling clearance of the Petitioner/Applicant’s Consignment;
c)THAT in the interim, this Honourable Court be pleased to issue an order compelling the 5th Respondent to clear the Petitioner/Applicant’s consignment and waive/halt demurrage and storage charges/levies caused by the delay in the Clearance of the Consignment.
The Court further directed the 5th Respondent to compute any unpaid levies, fees, and charges due, to be settled by the Applicant within seven (7) days only if the substantive Petition proved unsuccessful.
4. The Applicant’s case is that both alleged contemnors were personally served with the pleadings and the Court Orders dated 5th February 2026, that they had actual knowledge of the terms of the Orders, but failed, refused and/or neglected to comply, resulting in the consignment remaining detained for several months, accruing demurrage, storage and container detention charges, and being exposed to the risk of deterioration, infestation and contamination.
5. The Applicant states that it had been actively engaged with the 5th Respondent at the Port in Mombasa since November 2025, and that a stripping approval dated 6th November 2025 was issued authorising the transfer of the cargo to Focus CFS for storage. It further states that the consignment has since remained under customs control and supervision. It disputes the 2nd Alleged Contemnor's assertion that it "never approached" the 5th Respondent, and states that it duly applied for exemption codes pursuant to the Orders, an application that was rejected without reasons, contrary to Article 47 of the Constitution of Kenya, 2010, and sections 4 to 6 of the Fair Administrative Action Act, 2015.
6. The Applicant further contends that the 3rd Respondent's reliance on the absence of a further "permit" is a red herring, as the 3rd Respondent's evidence confirms that exemption codes are generated by the 5th Respondent, not the 3rd Respondent, so responsibility for the continued impasse lies with the 5th Respondent.
7. Regarding the Kerugoya proceedings, the Applicant's position is that the rulings of the High Court at Kerugoya authorised rather than prohibited the importation and release of duty-free rice; that the Applicant's consignment of 9,288 metric tonnes falls well within the sanctioned quantities; and that any alleged exhaustion of the Kerugoya quota occurred, if at all, several months after this Court's order of 5th February 2026, and cannot retrospectively excuse the Respondents' non-compliance during the intervening period. It further submits that, pursuant to sections 107 to 109 of the Evidence Act, the burden of proving quota exhaustion lies on the Respondents.
8. The 1st Alleged Contemnor filed his Replying Affidavit deponed on 15th June 2026. He does not dispute knowledge of the Orders of 5th February 2026. He states that the Applicant never lodged a Customs Entry with the 5th Respondent, and that this omission is not a mere technicality but the statutory foundation on which the generation of Customs exemption codes, activation of the KENTRADE Trade Facilitation Platform, and any system-generated approval by the 3rd Respondent depend. He states that the process never reached the stage at which his statutory mandate became operational.
9. He avers that the 3rd Respondent had already discharged all obligations within its statutory mandate by issuing Pre-Shipment Approvals dated 12th September 2025 and 28th October 2025 in respect of 5,000 and 10,000 metric tonnes, respectively, and that the Allocation Letter relied upon by the Applicant, dated 9th September 2025, was not issued by the 3rd Respondent but by the Interested Party, and that it was, in any event, never presented to the 5th Respondent.
10. He further avers, and it appears not to be directly controverted in the Applicant's Further Affidavit, that the Notification of Award issued by the Interested Party expressly provided that no contract would be executed earlier than fourteen (14) days or later than thirty (30) days after notification. Yet the Applicant had already shipped consignments for importation as early as 17th September 2025, barely eight days after the notification and before the contemplated contract was executed, and that the underlying allocation was subsequently cancelled. He contends that these facts were not disclosed to the Court when the ex parte interim orders of 5th February 2026 were obtained.
11. Regarding the Kerugoya framework, the 1st Alleged Contemnor avers that, by the time of the hearing of the application before the Court, the quotas established under the Kerugoya orders of 29th January 2026 and 27th March 2026 had been exhausted by imports from entities that had complied with the prescribed regulatory procedures, and that any further processing outside that framework would expose the 3rd Respondent to the risk of sanction for importation beyond the lawful quota.
12. On the other hand, the 2nd Alleged Contemnor filed his Replying Affidavit, deponed to on 25th May 2026. She does not dispute knowledge of the Orders. She avers that the order was served late. She states that the Order was to be complied with within the applicable legal framework. She avers that clearance under the East African Community Customs Management Act, 2004 can only proceed once the importer lodges an import entry through the Integrated Customs Management System, a process which by design can only be initiated by the importer and not generated on the importer's behalf by KRA officers; and that the Petitioner never lodged such an entry.
13. She averred that an Allocation Letter from the 3rd Respondent is a mandatory prerequisite before any customs entry is processed for a restricted product such as rice. Her position is as averred in the replying affidavits of Samuel Kinyanjui sworn on behalf of the 5th Respondent on 29th and 30th April 2026, annexed as "LN-2", that the Applicant did not present an allocation letter. She further averred that the Applicant went silent notwithstanding the position taken by the 5th Respondent in these proceedings.
14. The 5th Respondent stated that she acted throughout in good faith, remained willing to facilitate clearance within the confines of the law, and that, by a letter dated 7th July 2026, invited the Applicant to lodge the requisite customs entries. The Applicant responded on 10th July 2026 with supporting documentation.
15. The Applicant filed a Further Replying Affidavit, deposed to on 2nd July 2026, in response to the Replying Affidavits of the Alleged Contemnors. The Alleged Contemnors appeared before the Honourable Court on 8th July 2026 for the hearing of the application. During cross-examination, the 1st Alleged Contemnor admitted that, despite being served with and having knowledge of the Orders, he did not issue an allocation letter. He maintained that the allocation to the Applicant had, in any event, already been made by the interested Party, not the 3rd Respondent, and that no customs entry had been lodged upon which any of the 3rd Respondent’s approval could operate. The 2nd Alleged Contemnor admitted that she understood the Orders to require the 5th Respondent to facilitate clearance of the consignment, while maintaining that clearance was conditional on a customs entry that was never lodged by the Applicant.
16. The parties thereafter filed and exchanged written submissions. The Applicant's Submissions dated 13th July 2026, the 1st Alleged Contemnor's Submissions dated 22nd July 2026, and the 2nd Alleged Contemnor's Written Submissions dated 22nd July 2026 were considered by this Court together with the authorities cited therein.
Submissions of the Parties
17. The Applicant relied on the decision of Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) and submitted that civil contempt requires proof of: (i) the terms of the order; (ii) knowledge of those terms by the respondent; and (iii) failure to comply with the terms of the order. It was its contention that all three elements are made out, as evidenced by the admissions of both Alleged Contemnors.
18. The Applicant relied on the decision of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) to support the proposition that actual knowledge of an order supersedes any requirement for personal service, and submits that the admissions made by the Contemnors under cross-examination are conclusive as to knowledge.
19. On clarity, the Applicant relied on the decisions of Carey v Laiken, 2015 SCC 17, and Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), submitting that the Court Orders were couched in clear, mandatory and unconditional terms, incapable of more than one interpretation, and were not made contingent on any further administrative step by the Applicant.
20. In relation to compliance with the court orders, the Applicant relied on Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR), which held that the authority and dignity of the courts must be upheld and that deliberate disobedience will not be condoned, and on Katiba Institute & another v Attorney General & 7 others [2026] KEHC 9020 (KLR) for the proposition that the obligation to comply attaches to the office holder personally and turns on the substance of the restrained conduct rather than the identity of collaborating agencies.
21. The Applicant submits that the explanations proffered by the Contemnors regarding revenue targets, the absence of permits from the 3rd Respondent, reliance on the Kerugoya proceedings, and quota exhaustion do not constitute lawful defences to contempt. The Applicant relied on the Court's decision in Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR), which held that administrative or inter-agency inefficiency cannot override a Court Order.
22. The Applicant’s submission is that having established the threshold for Contempt by the alleged Contemnors, the court should grant the orders sought in its application.
23. The 1st Alleged Contemnor relied on the decision of Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) which was also relied on by the Applicant. He submitted that contempt of Court orders requires the elements outlined in the decision, as set out in paragraph 17 hereinabove. He submitted that failure to establish any one element is fatal to the contempt application. He submitted that while knowledge is admitted, the remaining elements, particularly ability to comply and intentionality, were not made out.
24. He relied on the decision in Masri v Consolidated Contractors International (UK) Ltd (No. 2) [2011] EWCA Civ 898 for the proposition that impossibility of compliance is a complete answer to an allegation of contempt, and on Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) which held that judicial remedies compel performance of duties imposed by law and do not require public officers to act outside their statutory powers or contrary to statute. His position is that an order to "clear" or "facilitate" a consignment cannot be read as implying a direction to dispense with the mandatory sequential requirements of the East African Community Customs Management Act, 2004 and the KENTRADE platform.
25. He further relied on the findings of the court in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] KECA 840 (KLR) and on the findings of Mativo J in the Samuel M.N. Mweru case, which referred to the Supreme Court of Appeal of South Africa in Burchell v Burchell, Case No. 364/2005, for the proposition that the refusal to comply must be both wilful and mala fide, and that an honest, even if mistaken, belief that one is not obliged to act in the manner alleged is incompatible with the intent required for contempt.
26. He invoked the decision in Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1995] KECA 168 (KLR) while submitting that the Applicant's non-disclosure of the premature shipment before execution of the KNTC contract and of the subsequent cancellation of the underlying allocation when it obtained the ex parte interim orders of 5th February 2026, independently disentitles the Petitioner to the discretionary and equitable relief of committal.
27. The 2nd Alleged Contemnor also filed extensive submissions. Reliance was placed on the decisions in Mathew Kiptoo & another v Ronald Chelangat, Trading as Yatrin Investments [2015] KEHC 3413 (KLR) and Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR), that an order can command no more than what the party addressed is legally bound and able to perform, and that the 5th Respondent cannot be held in contempt for declining to bypass the automated ICMS entry process which, by design, only the importer or its agent can initiate.
28. She relied on the doctrine of ex turpi causa non oritur actio as applied in Kenya Airways Limited v Flora [2013] KECA 545 (KLR), and submitted that the Applicant cannot rely on its own default, namely failure to lodge a customs entry and to furnish the mandatory Allocation Letter, to found a complaint of contempt against the officer who, on the uncontroverted evidence, was powerless to act in the absence of those prerequisites.
29. She adopted the threshold set out in Carey v Laiken, 2015 SCC 17, as applied in Cecil Miller v Jackson Njeru & Another [2017] KEHC 1499 (KLR), and submitted that the third limb, intentional breach, is not established, and that the evidence shows the 5th Respondent remained ready to facilitate clearance, subject to the Applicants' satisfaction of the statutory prerequisites.
Analysis and Determination
30. It is common ground that civil contempt in Kenya is quasi-criminal in character, and the standard of proof is higher than a balance of probabilities though it falls short of proof beyond reasonable doubt. See Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR). The elements to be proved, cumulatively, are set out in Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR), a decision that was relied on by the Applicant and 1st alleged Contemnor. The failure to establish any one ingredient is fatal to the application. (a) a clear, precise and unambiguous order binding on the respondent; (b) actual knowledge of that order; (c) the ability of the alleged contemnor to comply; (d) deliberate and wilful failure to comply; and (e) that the failure was intentional, and not the result of accident, misunderstanding, impossibility, or circumstances beyond the contemnor's control.
i) Clarity, Precision and actual knowledge of the order
31. The Court Orders dated 5th February 2026 directed the 3rd Respondent to issue the Duty-Free Import Clearance Permit and codes on the KENTRADE platform, and the 5th Respondent to clear the Applicant’s consignment and halt demurrage and storage charges, with computation of any unpaid levies to follow. The orders were mandatory and unconditional.
32. Neither of the alleged Contemnors disputes the existence of these Orders nor their own knowledge of the said orders. Indeed, both made clear admissions of knowledge under cross-examination. The first two elements of the test in the Samuel Mweru test; a clear, precise and unambiguous order binding on the Respondents; and actual knowledge of that order are accordingly satisfied as against both alleged Contemnors.
(iii) Ability to comply and the alleged impossibility
33. The contest in the application before the Court is not knowledge of the Court Order but ability to comply with the Order specifically, whether the statutory and platform-based sequence for customs clearance was a precondition the Order left undisturbed, and, if so, whether the Applicant ever satisfied that precondition.
34. This Court agrees with the decision in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) that an order directing a public officer to facilitate or clear an import consignment ought not, absent express language to that effect, be construed as impliedly directing that officer to disregard mandatory statutory procedure or to perform an administrative act that the governing legislation does not permit to be performed manually or out of sequence. The Orders of 5th February 2026 do not, on their face, purport to suspend the East African Community Customs Management Act or dispense with the requirement of a customs entry; they compel the Respondents to act within the confines of the law.
35. On the evidence presented before the court, it is common ground between the Alleged Contemnors, and not squarely rebutted by any document produced by the Applicant, that no Customs Entry was lodged in the Integrated Customs Management System (iCMS) at any time material to the application. The Applicant’s further Affidavit at paragraph 12 does assert that it "duly applied for the requisite exemption codes" pursuant to the Orders and that the application was rejected without reasons; however, no such application, or the 5th Respondent's rejection of it, has been placed before this Court as a discrete, dated document distinct from the pre-Order stripping approval of 6th November 2025.
36. Given the standard applicable to contempt of Court, this Court is not satisfied that the bare assertion of the Applicant at paragraph 12 of its Supplementary affidavit, absent any documentation or proof of the averments, displaces the more detailed and internally consistent account given by both alleged contemnors, corroborated by the 2nd Alleged Contemnor's annexure "LN-2", which records that the Applicant was expressly notified that no customs entry existed to be accepted or rejected, and that the Applicant did not take any steps to regularize this position.
37. This is not to say that the alleged contemnors' defence of the impossibility of performing the court order can be accepted as it stands. The court notes that the 1st Alleged Contemnor's own evidence is that the Allocation Letter relied upon was issued by the Interested Party, not by the 3rd Respondent, and that it was never presented to the 5th Respondent. Yet the 2nd Alleged Contemnor's evidence is that the absence of a letter from the 3rd Respondent was what prevented her from acting on the court order. The 3rd and 5th Respondents' accounts of precisely which document was missing, and from whom it ought to have been issued, are not fully reconciled, and each points somewhat past the other.
38. Secondly, on the 2nd Alleged Contemnor's own account, the 5th Respondent did not invite the Applicant to lodge a customs entry until its letter of 7th July 2026. The Applicant also submitted this position. However, the Court notes that none of the parties exhibited this correspondence before it. The 5th Respondent’s action was initiated after this contempt application had been filed. This delay has no satisfactory explanation on record, notwithstanding the perishable nature of the goods and the express terms of the Order requiring clearance "forthwith".
39. Thirdly, the stripping approval of 6th November 2025 and the Pre-Shipment Approvals of 12th September 2025 and 28th October 2025 show that both Respondent agencies had, well before the Order, engaged substantively with this specific consignment, which sits uneasily with any suggestion that the consignment was, in law, wholly outside their institutional knowledge or control.
40. None of these three matters, taken singly or together, is sufficient to displace the central and largely uncontroverted fact that no Customs Entry was lodged, which this Court finds was the operative precondition for further processing under the East African Community Customs Management Act and the KENTRADE platform. They are, however, sufficient to inform the exercise of this Court's discretion on the sanction necessary for the issues before the Court.
(iv) the failure was intentional, and not the result of accident, misunderstanding, impossibility, or circumstances beyond the contemnor's control.
41. Proving that an order was not obeyed is not enough on its own. Contempt also requires proof that the refusal to comply was deliberate and made in bad faith. The Supreme Court in Republic v Mohammed & another [2018] KESC 51 (KLR) declined to make a finding of contempt on this very basis, holding that a public officer who takes a reasonable, good-faith view of what an order requires, even where the other side disputes that view, has not committed contempt. The same principle was applied in Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) (citing the Court of Appeal's approval, in A.B. & Another v R.B., Civil Application No. 4 of 2016 [2016] eKLR, of Burchell v Burchell, Case No. 364/2005) that a person who honestly believes even if mistaken that a required step has not yet been completed does not have the guilty state of mind that contempt requires.
42. On the record before the Court, the 1st and 2nd Alleged Contemnors' averments that clearance could not lawfully proceed without a customs entry, and that the 3rd Respondent's role was limited to approving a transaction that never came into electronic existence, are neither implausible nor self-serving fabrications invented for these proceedings; they are consistent with the sequential design of the ICMS/KENTRADE platform as described, without material contradiction, by both witnesses under cross-examination.
43. This Court is accordingly not satisfied, to the heightened standard required, that the Alleged Contemnor's conduct crossed the line from good-faith adherence to a statutory process into deliberate and mala fide defiance of this Court's authority of the kind contemplated in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR).
44. There is a clear pattern in the responses filed and the evidence, with each Contemnor placing blame on the other, on a precondition of their actions, or on the actions of the Interested Party. The decision of Katiba Institute & another v Attorney General & 7 others [2026] KEHC 9020 (KLR) holds that the obligation to comply with a court order attaches to the office holder personally, and that State agencies may not defeat compliance by shifting responsibility onto one another.
45. This is to say that blaming another agency is not, by itself, a valid excuse in law. It does not answer the real question here: has the Applicant proved, to the required standard, that either Alleged Contemnor deliberately caused or took advantage of the standoff between the 3rd and 5th Respondents to defy the Court's Order? On the evidence, it is more likely that each Contemnor was acting, however imperfectly, on a genuine if mutually inconsistent understanding of the statutory process, a process the Applicant itself never set in motion by lodging a customs entry.
46. Regarding the proceedings in the Kerugoya High Court and quota exhaustion, this Court agrees with the Applicant that none of the rulings purports to prohibit the release of this particular consignment. Those rulings authorize and regulate, rather than bar, the importation of duty-free rice, and the size of the Applicant's importation, in tonnes, is within the quantities and tranche limits described. The Respondents' evidence of quota exhaustion is, as the Applicant correctly submits, unsupported by any allocation schedule, utilization report or dated computation, and the burden of proving that fact, under sections 107 to 109 of the Evidence Act, lies on the party asserting it.
47. This Court does not, however, need to resolve the quota exhaustion question to dispose of this application, since it has already found that the operative and unmet precondition was the absence of a Customs Entry, a matter before this Court that remains unremedied, independently of and prior to any question of Kerugoya quota exhaustion.
48. The 1st Alleged Contemnor's submission is that, when seeking the ex parte interim orders of 5th February 2026, the Applicant failed to disclose to the court that it had shipped consignments before the execution of its contract with the interested party and that the underlying allocation had subsequently been cancelled. He relied on the decision of Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1995] KECA 168 (KLR).
49. The Applicant’s Further Affidavit does not address this issue. While this Court declines, on an interlocutory contempt application, to make definitive findings on matters bearing on the propriety of the ex parte orders, which remain in force and are not before this Court for discharge in these proceedings, the unrebutted nature of this allegation further reinforces this Court's reluctance to exercise its discretionary contempt jurisdiction in the Applicant's favour at this stage.
Final Orders;
50. For the foregoing reasons, this Court finds that the Applicant has established knowledge of the Orders of 5th February 2026 by both the 1st and 2nd Alleged Contemnors and the clarity of those Orders, but has not established, to the standard required in contempt proceedings, that either Alleged Contemnor had the ability to comply absent a Customs Entry that was never lodged, nor that any non-compliance was deliberate and mala fide rather than a good-faith (if imperfectly coordinated) adherence to a statutory clearance sequence.
51. Accordingly, and with a view to resolving the issues that precipitated the contempt application, this Court makes the following orders:
(a) The Notice of Motion Application dated 26th February 2026 is hereby DISMISSED with no orders as to costs;
(b) The substantive Orders of 5th February 2026 remain in force and are not discharged, varied, or affected by this ruling;
(c) The Applicant shall, within Seven (7) days of this ruling, lodge a Customs Entry in respect of the subject consignment, if not already lodged as represented in its letter of 10th July 2026, and shall simultaneously furnish the 5th Respondent with all supporting documentation required under sections 34 and 42 of the East African Community Customs Management Act, 2004; and
(d) Upon lodging of the Customs Entry, the 5th Respondent shall generate the requisite Customs exemption codes and transmit the same to the KENTRADE Trade Facilitation Platform, and the 3rd Respondent shall process and approve the resultant transaction and issue the Duty-Free Import Clearance Permit, all in accordance with the Orders of 5th February 2026.
52. Costs are at the Court's discretion. Given the nature of the matter, I order that each party shall bear its own costs of the application.
53. It is so ordered.
Dated and signed at Nairobi this 18th day of August 2026
1. Before this Court is the Notice of Motion Application dated 26th February 2026, brought by the Petitioner, Zuchero Trading Limited. The Application seeks to have Mr Calistus K Efukho, the Acting Director General of the 3rd Respondent, and Dr Lilian Nyawanda, the Commissioner of Customs and Border Control of the 5th Respondent, cited for contempt of the orders of this Honourable Court issued on 5th February 2026, and committed to civil jail for a term not exceeding six (6) months and/or fined Kes 5,000,000, for their alleged deliberate failure to comply with those orders.
2. The application arises from the continued detention at the Port of Mombasa of a consignment of 9,288 metric tonnes of rice imported by the Applicant pursuant to Gazette Notice No. 10353, which authorised the duty-free importation of 500,000 metric tonnes of Grade One rice for the period from 28th July 2025 to 31st December 2025 under tender reference KNTC/TENDER/IMPORT/003/2025-2026.
The Applicant’s Case
3. On 5th February 2026, pending the inter partes hearing of the Applicant’s Notice of Motion dated 4th February 2026, the court granted interim orders in terms of Prayers b) and c) of that application, which I outline below:
b) THAT in the interim, this honourable court be pleased to issue an order compelling the 3rd Respondent to issue the sought duty-free import Clearance Permit and codes on KENTRADE facilitation platform (TPF) enabling clearance of the Petitioner/Applicant’s Consignment;
c)THAT in the interim, this Honourable Court be pleased to issue an order compelling the 5th Respondent to clear the Petitioner/Applicant’s consignment and waive/halt demurrage and storage charges/levies caused by the delay in the Clearance of the Consignment.
The Court further directed the 5th Respondent to compute any unpaid levies, fees, and charges due, to be settled by the Applicant within seven (7) days only if the substantive Petition proved unsuccessful.
4. The Applicant’s case is that both alleged contemnors were personally served with the pleadings and the Court Orders dated 5th February 2026, that they had actual knowledge of the terms of the Orders, but failed, refused and/or neglected to comply, resulting in the consignment remaining detained for several months, accruing demurrage, storage and container detention charges, and being exposed to the risk of deterioration, infestation and contamination.
5. The Applicant states that it had been actively engaged with the 5th Respondent at the Port in Mombasa since November 2025, and that a stripping approval dated 6th November 2025 was issued authorising the transfer of the cargo to Focus CFS for storage. It further states that the consignment has since remained under customs control and supervision. It disputes the 2nd Alleged Contemnor's assertion that it "never approached" the 5th Respondent, and states that it duly applied for exemption codes pursuant to the Orders, an application that was rejected without reasons, contrary to Article 47 of the Constitution of Kenya, 2010, and sections 4 to 6 of the Fair Administrative Action Act, 2015.
6. The Applicant further contends that the 3rd Respondent's reliance on the absence of a further "permit" is a red herring, as the 3rd Respondent's evidence confirms that exemption codes are generated by the 5th Respondent, not the 3rd Respondent, so responsibility for the continued impasse lies with the 5th Respondent.
7. Regarding the Kerugoya proceedings, the Applicant's position is that the rulings of the High Court at Kerugoya authorised rather than prohibited the importation and release of duty-free rice; that the Applicant's consignment of 9,288 metric tonnes falls well within the sanctioned quantities; and that any alleged exhaustion of the Kerugoya quota occurred, if at all, several months after this Court's order of 5th February 2026, and cannot retrospectively excuse the Respondents' non-compliance during the intervening period. It further submits that, pursuant to sections 107 to 109 of the Evidence Act, the burden of proving quota exhaustion lies on the Respondents.
8. The 1st Alleged Contemnor filed his Replying Affidavit deponed on 15th June 2026. He does not dispute knowledge of the Orders of 5th February 2026. He states that the Applicant never lodged a Customs Entry with the 5th Respondent, and that this omission is not a mere technicality but the statutory foundation on which the generation of Customs exemption codes, activation of the KENTRADE Trade Facilitation Platform, and any system-generated approval by the 3rd Respondent depend. He states that the process never reached the stage at which his statutory mandate became operational.
9. He avers that the 3rd Respondent had already discharged all obligations within its statutory mandate by issuing Pre-Shipment Approvals dated 12th September 2025 and 28th October 2025 in respect of 5,000 and 10,000 metric tonnes, respectively, and that the Allocation Letter relied upon by the Applicant, dated 9th September 2025, was not issued by the 3rd Respondent but by the Interested Party, and that it was, in any event, never presented to the 5th Respondent.
10. He further avers, and it appears not to be directly controverted in the Applicant's Further Affidavit, that the Notification of Award issued by the Interested Party expressly provided that no contract would be executed earlier than fourteen (14) days or later than thirty (30) days after notification. Yet the Applicant had already shipped consignments for importation as early as 17th September 2025, barely eight days after the notification and before the contemplated contract was executed, and that the underlying allocation was subsequently cancelled. He contends that these facts were not disclosed to the Court when the ex parte interim orders of 5th February 2026 were obtained.
11. Regarding the Kerugoya framework, the 1st Alleged Contemnor avers that, by the time of the hearing of the application before the Court, the quotas established under the Kerugoya orders of 29th January 2026 and 27th March 2026 had been exhausted by imports from entities that had complied with the prescribed regulatory procedures, and that any further processing outside that framework would expose the 3rd Respondent to the risk of sanction for importation beyond the lawful quota.
12. On the other hand, the 2nd Alleged Contemnor filed his Replying Affidavit, deponed to on 25th May 2026. She does not dispute knowledge of the Orders. She avers that the order was served late. She states that the Order was to be complied with within the applicable legal framework. She avers that clearance under the East African Community Customs Management Act, 2004 can only proceed once the importer lodges an import entry through the Integrated Customs Management System, a process which by design can only be initiated by the importer and not generated on the importer's behalf by KRA officers; and that the Petitioner never lodged such an entry.
13. She averred that an Allocation Letter from the 3rd Respondent is a mandatory prerequisite before any customs entry is processed for a restricted product such as rice. Her position is as averred in the replying affidavits of Samuel Kinyanjui sworn on behalf of the 5th Respondent on 29th and 30th April 2026, annexed as "LN-2", that the Applicant did not present an allocation letter. She further averred that the Applicant went silent notwithstanding the position taken by the 5th Respondent in these proceedings.
14. The 5th Respondent stated that she acted throughout in good faith, remained willing to facilitate clearance within the confines of the law, and that, by a letter dated 7th July 2026, invited the Applicant to lodge the requisite customs entries. The Applicant responded on 10th July 2026 with supporting documentation.
15. The Applicant filed a Further Replying Affidavit, deposed to on 2nd July 2026, in response to the Replying Affidavits of the Alleged Contemnors. The Alleged Contemnors appeared before the Honourable Court on 8th July 2026 for the hearing of the application. During cross-examination, the 1st Alleged Contemnor admitted that, despite being served with and having knowledge of the Orders, he did not issue an allocation letter. He maintained that the allocation to the Applicant had, in any event, already been made by the interested Party, not the 3rd Respondent, and that no customs entry had been lodged upon which any of the 3rd Respondent’s approval could operate. The 2nd Alleged Contemnor admitted that she understood the Orders to require the 5th Respondent to facilitate clearance of the consignment, while maintaining that clearance was conditional on a customs entry that was never lodged by the Applicant.
16. The parties thereafter filed and exchanged written submissions. The Applicant's Submissions dated 13th July 2026, the 1st Alleged Contemnor's Submissions dated 22nd July 2026, and the 2nd Alleged Contemnor's Written Submissions dated 22nd July 2026 were considered by this Court together with the authorities cited therein.
Submissions of the Parties
17. The Applicant relied on the decision of Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) and submitted that civil contempt requires proof of: (i) the terms of the order; (ii) knowledge of those terms by the respondent; and (iii) failure to comply with the terms of the order. It was its contention that all three elements are made out, as evidenced by the admissions of both Alleged Contemnors.
18. The Applicant relied on the decision of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR) to support the proposition that actual knowledge of an order supersedes any requirement for personal service, and submits that the admissions made by the Contemnors under cross-examination are conclusive as to knowledge.
19. On clarity, the Applicant relied on the decisions of Carey v Laiken, 2015 SCC 17, and Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), submitting that the Court Orders were couched in clear, mandatory and unconditional terms, incapable of more than one interpretation, and were not made contingent on any further administrative step by the Applicant.
20. In relation to compliance with the court orders, the Applicant relied on Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR), which held that the authority and dignity of the courts must be upheld and that deliberate disobedience will not be condoned, and on Katiba Institute & another v Attorney General & 7 others [2026] KEHC 9020 (KLR) for the proposition that the obligation to comply attaches to the office holder personally and turns on the substance of the restrained conduct rather than the identity of collaborating agencies.
21. The Applicant submits that the explanations proffered by the Contemnors regarding revenue targets, the absence of permits from the 3rd Respondent, reliance on the Kerugoya proceedings, and quota exhaustion do not constitute lawful defences to contempt. The Applicant relied on the Court's decision in Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR), which held that administrative or inter-agency inefficiency cannot override a Court Order.
22. The Applicant’s submission is that having established the threshold for Contempt by the alleged Contemnors, the court should grant the orders sought in its application.
23. The 1st Alleged Contemnor relied on the decision of Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) which was also relied on by the Applicant. He submitted that contempt of Court orders requires the elements outlined in the decision, as set out in paragraph 17 hereinabove. He submitted that failure to establish any one element is fatal to the contempt application. He submitted that while knowledge is admitted, the remaining elements, particularly ability to comply and intentionality, were not made out.
24. He relied on the decision in Masri v Consolidated Contractors International (UK) Ltd (No. 2) [2011] EWCA Civ 898 for the proposition that impossibility of compliance is a complete answer to an allegation of contempt, and on Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) which held that judicial remedies compel performance of duties imposed by law and do not require public officers to act outside their statutory powers or contrary to statute. His position is that an order to "clear" or "facilitate" a consignment cannot be read as implying a direction to dispense with the mandatory sequential requirements of the East African Community Customs Management Act, 2004 and the KENTRADE platform.
25. He further relied on the findings of the court in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] KECA 840 (KLR) and on the findings of Mativo J in the Samuel M.N. Mweru case, which referred to the Supreme Court of Appeal of South Africa in Burchell v Burchell, Case No. 364/2005, for the proposition that the refusal to comply must be both wilful and mala fide, and that an honest, even if mistaken, belief that one is not obliged to act in the manner alleged is incompatible with the intent required for contempt.
26. He invoked the decision in Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1995] KECA 168 (KLR) while submitting that the Applicant's non-disclosure of the premature shipment before execution of the KNTC contract and of the subsequent cancellation of the underlying allocation when it obtained the ex parte interim orders of 5th February 2026, independently disentitles the Petitioner to the discretionary and equitable relief of committal.
27. The 2nd Alleged Contemnor also filed extensive submissions. Reliance was placed on the decisions in Mathew Kiptoo & another v Ronald Chelangat, Trading as Yatrin Investments [2015] KEHC 3413 (KLR) and Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR), that an order can command no more than what the party addressed is legally bound and able to perform, and that the 5th Respondent cannot be held in contempt for declining to bypass the automated ICMS entry process which, by design, only the importer or its agent can initiate.
28. She relied on the doctrine of ex turpi causa non oritur actio as applied in Kenya Airways Limited v Flora [2013] KECA 545 (KLR), and submitted that the Applicant cannot rely on its own default, namely failure to lodge a customs entry and to furnish the mandatory Allocation Letter, to found a complaint of contempt against the officer who, on the uncontroverted evidence, was powerless to act in the absence of those prerequisites.
29. She adopted the threshold set out in Carey v Laiken, 2015 SCC 17, as applied in Cecil Miller v Jackson Njeru & Another [2017] KEHC 1499 (KLR), and submitted that the third limb, intentional breach, is not established, and that the evidence shows the 5th Respondent remained ready to facilitate clearance, subject to the Applicants' satisfaction of the statutory prerequisites.
Analysis and Determination
30. It is common ground that civil contempt in Kenya is quasi-criminal in character, and the standard of proof is higher than a balance of probabilities though it falls short of proof beyond reasonable doubt. See Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR). The elements to be proved, cumulatively, are set out in Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR), a decision that was relied on by the Applicant and 1st alleged Contemnor. The failure to establish any one ingredient is fatal to the application. (a) a clear, precise and unambiguous order binding on the respondent; (b) actual knowledge of that order; (c) the ability of the alleged contemnor to comply; (d) deliberate and wilful failure to comply; and (e) that the failure was intentional, and not the result of accident, misunderstanding, impossibility, or circumstances beyond the contemnor's control.
i) Clarity, Precision and actual knowledge of the order
31. The Court Orders dated 5th February 2026 directed the 3rd Respondent to issue the Duty-Free Import Clearance Permit and codes on the KENTRADE platform, and the 5th Respondent to clear the Applicant’s consignment and halt demurrage and storage charges, with computation of any unpaid levies to follow. The orders were mandatory and unconditional.
32. Neither of the alleged Contemnors disputes the existence of these Orders nor their own knowledge of the said orders. Indeed, both made clear admissions of knowledge under cross-examination. The first two elements of the test in the Samuel Mweru test; a clear, precise and unambiguous order binding on the Respondents; and actual knowledge of that order are accordingly satisfied as against both alleged Contemnors.
(iii) Ability to comply and the alleged impossibility
33. The contest in the application before the Court is not knowledge of the Court Order but ability to comply with the Order specifically, whether the statutory and platform-based sequence for customs clearance was a precondition the Order left undisturbed, and, if so, whether the Applicant ever satisfied that precondition.
34. This Court agrees with the decision in Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) that an order directing a public officer to facilitate or clear an import consignment ought not, absent express language to that effect, be construed as impliedly directing that officer to disregard mandatory statutory procedure or to perform an administrative act that the governing legislation does not permit to be performed manually or out of sequence. The Orders of 5th February 2026 do not, on their face, purport to suspend the East African Community Customs Management Act or dispense with the requirement of a customs entry; they compel the Respondents to act within the confines of the law.
35. On the evidence presented before the court, it is common ground between the Alleged Contemnors, and not squarely rebutted by any document produced by the Applicant, that no Customs Entry was lodged in the Integrated Customs Management System (iCMS) at any time material to the application. The Applicant’s further Affidavit at paragraph 12 does assert that it "duly applied for the requisite exemption codes" pursuant to the Orders and that the application was rejected without reasons; however, no such application, or the 5th Respondent's rejection of it, has been placed before this Court as a discrete, dated document distinct from the pre-Order stripping approval of 6th November 2025.
36. Given the standard applicable to contempt of Court, this Court is not satisfied that the bare assertion of the Applicant at paragraph 12 of its Supplementary affidavit, absent any documentation or proof of the averments, displaces the more detailed and internally consistent account given by both alleged contemnors, corroborated by the 2nd Alleged Contemnor's annexure "LN-2", which records that the Applicant was expressly notified that no customs entry existed to be accepted or rejected, and that the Applicant did not take any steps to regularize this position.
37. This is not to say that the alleged contemnors' defence of the impossibility of performing the court order can be accepted as it stands. The court notes that the 1st Alleged Contemnor's own evidence is that the Allocation Letter relied upon was issued by the Interested Party, not by the 3rd Respondent, and that it was never presented to the 5th Respondent. Yet the 2nd Alleged Contemnor's evidence is that the absence of a letter from the 3rd Respondent was what prevented her from acting on the court order. The 3rd and 5th Respondents' accounts of precisely which document was missing, and from whom it ought to have been issued, are not fully reconciled, and each points somewhat past the other.
38. Secondly, on the 2nd Alleged Contemnor's own account, the 5th Respondent did not invite the Applicant to lodge a customs entry until its letter of 7th July 2026. The Applicant also submitted this position. However, the Court notes that none of the parties exhibited this correspondence before it. The 5th Respondent’s action was initiated after this contempt application had been filed. This delay has no satisfactory explanation on record, notwithstanding the perishable nature of the goods and the express terms of the Order requiring clearance "forthwith".
39. Thirdly, the stripping approval of 6th November 2025 and the Pre-Shipment Approvals of 12th September 2025 and 28th October 2025 show that both Respondent agencies had, well before the Order, engaged substantively with this specific consignment, which sits uneasily with any suggestion that the consignment was, in law, wholly outside their institutional knowledge or control.
40. None of these three matters, taken singly or together, is sufficient to displace the central and largely uncontroverted fact that no Customs Entry was lodged, which this Court finds was the operative precondition for further processing under the East African Community Customs Management Act and the KENTRADE platform. They are, however, sufficient to inform the exercise of this Court's discretion on the sanction necessary for the issues before the Court.
(iv) the failure was intentional, and not the result of accident, misunderstanding, impossibility, or circumstances beyond the contemnor's control.
41. Proving that an order was not obeyed is not enough on its own. Contempt also requires proof that the refusal to comply was deliberate and made in bad faith. The Supreme Court in Republic v Mohammed & another [2018] KESC 51 (KLR) declined to make a finding of contempt on this very basis, holding that a public officer who takes a reasonable, good-faith view of what an order requires, even where the other side disputes that view, has not committed contempt. The same principle was applied in Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) (citing the Court of Appeal's approval, in A.B. & Another v R.B., Civil Application No. 4 of 2016 [2016] eKLR, of Burchell v Burchell, Case No. 364/2005) that a person who honestly believes even if mistaken that a required step has not yet been completed does not have the guilty state of mind that contempt requires.
42. On the record before the Court, the 1st and 2nd Alleged Contemnors' averments that clearance could not lawfully proceed without a customs entry, and that the 3rd Respondent's role was limited to approving a transaction that never came into electronic existence, are neither implausible nor self-serving fabrications invented for these proceedings; they are consistent with the sequential design of the ICMS/KENTRADE platform as described, without material contradiction, by both witnesses under cross-examination.
43. This Court is accordingly not satisfied, to the heightened standard required, that the Alleged Contemnor's conduct crossed the line from good-faith adherence to a statutory process into deliberate and mala fide defiance of this Court's authority of the kind contemplated in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KEHC 1767 (KLR).
44. There is a clear pattern in the responses filed and the evidence, with each Contemnor placing blame on the other, on a precondition of their actions, or on the actions of the Interested Party. The decision of Katiba Institute & another v Attorney General & 7 others [2026] KEHC 9020 (KLR) holds that the obligation to comply with a court order attaches to the office holder personally, and that State agencies may not defeat compliance by shifting responsibility onto one another.
45. This is to say that blaming another agency is not, by itself, a valid excuse in law. It does not answer the real question here: has the Applicant proved, to the required standard, that either Alleged Contemnor deliberately caused or took advantage of the standoff between the 3rd and 5th Respondents to defy the Court's Order? On the evidence, it is more likely that each Contemnor was acting, however imperfectly, on a genuine if mutually inconsistent understanding of the statutory process, a process the Applicant itself never set in motion by lodging a customs entry.
46. Regarding the proceedings in the Kerugoya High Court and quota exhaustion, this Court agrees with the Applicant that none of the rulings purports to prohibit the release of this particular consignment. Those rulings authorize and regulate, rather than bar, the importation of duty-free rice, and the size of the Applicant's importation, in tonnes, is within the quantities and tranche limits described. The Respondents' evidence of quota exhaustion is, as the Applicant correctly submits, unsupported by any allocation schedule, utilization report or dated computation, and the burden of proving that fact, under sections 107 to 109 of the Evidence Act, lies on the party asserting it.
47. This Court does not, however, need to resolve the quota exhaustion question to dispose of this application, since it has already found that the operative and unmet precondition was the absence of a Customs Entry, a matter before this Court that remains unremedied, independently of and prior to any question of Kerugoya quota exhaustion.
48. The 1st Alleged Contemnor's submission is that, when seeking the ex parte interim orders of 5th February 2026, the Applicant failed to disclose to the court that it had shipped consignments before the execution of its contract with the interested party and that the underlying allocation had subsequently been cancelled. He relied on the decision of Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1995] KECA 168 (KLR).
49. The Applicant’s Further Affidavit does not address this issue. While this Court declines, on an interlocutory contempt application, to make definitive findings on matters bearing on the propriety of the ex parte orders, which remain in force and are not before this Court for discharge in these proceedings, the unrebutted nature of this allegation further reinforces this Court's reluctance to exercise its discretionary contempt jurisdiction in the Applicant's favour at this stage.
Final Orders;
50. For the foregoing reasons, this Court finds that the Applicant has established knowledge of the Orders of 5th February 2026 by both the 1st and 2nd Alleged Contemnors and the clarity of those Orders, but has not established, to the standard required in contempt proceedings, that either Alleged Contemnor had the ability to comply absent a Customs Entry that was never lodged, nor that any non-compliance was deliberate and mala fide rather than a good-faith (if imperfectly coordinated) adherence to a statutory clearance sequence.
51. Accordingly, and with a view to resolving the issues that precipitated the contempt application, this Court makes the following orders:
(a) The Notice of Motion Application dated 26th February 2026 is hereby DISMISSED with no orders as to costs;
(b) The substantive Orders of 5th February 2026 remain in force and are not discharged, varied, or affected by this ruling;
(c) The Applicant shall, within Seven (7) days of this ruling, lodge a Customs Entry in respect of the subject consignment, if not already lodged as represented in its letter of 10th July 2026, and shall simultaneously furnish the 5th Respondent with all supporting documentation required under sections 34 and 42 of the East African Community Customs Management Act, 2004; and
(d) Upon lodging of the Customs Entry, the 5th Respondent shall generate the requisite Customs exemption codes and transmit the same to the KENTRADE Trade Facilitation Platform, and the 3rd Respondent shall process and approve the resultant transaction and issue the Duty-Free Import Clearance Permit, all in accordance with the Orders of 5th February 2026.
52. Costs are at the Court's discretion. Given the nature of the matter, I order that each party shall bear its own costs of the application.
53. It is so ordered.
Dated and signed at Nairobi this 18th day of August 2026