Islamic Foundation v Aly (as trustee of the Wakf Properties of Ali Bin Mohamed alias Muses Mohamed) & 2 others
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents were in contempt of the status quo orders issued by the Court of Appeal on 3rd February 2023 by erecting a fence on the suit property
- 2.Whether the applicant proved contempt to the required standard, namely willful disobedience with mala fides
Key legal issues
#Whether the status quo order was sufficiently clear to sustain a contempt charge
The order was couched in broad terms and did not prohibit fencing or acts to safeguard the property, so it could not found a contempt finding
The court applied the Carey v Laiken elements: the order must clearly and unequivocally state what should and should not be done. The status quo order directed maintenance of the status quo on the ground in broad terms without specifying permitted or prohibited acts. Since it did not prohibit fencing or protective measures against third-party invasion, the respondents could not be in contempt of it.
Whether the respondents acted willfully and with mala fides
The respondents acted bona fide to protect the property from invasions, on police advice, and without intent to disobey; willfulness and mala fides were not established
The respondents deposed that third parties had fraudulently subdivided and invaded the property, lit fires and constructed structures; police advised fencing for the safety of children and worshipers. The fence did not interfere with the 50 acres claimed. The court found no willful disobedience or mala fides, and the applicant failed to show deliberate and intentional violation of the court's dignity, repute or authority.
Whether the applicant discharged the elevated standard of proof in contempt proceedings
The applicant did not prove contempt to the standard of higher than balance of probabilities, almost but not exactly beyond reasonable doubt
Restating Mutitika v Baharini Farm Ltd, the court held contempt is quasi-criminal and the standard of proof is elevated. Given the ambiguity of the order and the respondents' bona fide protective purpose, the applicant failed to discharge that burden, and the motion necessarily failed.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- Refusal to obey a court order must be both willful and mala fide; bona fide non-compliance, even if unreasonable, does not constitute contempt
- A party cannot be held in contempt of an order that is unclear or couched in broad terms; the order must clearly and unequivocally state what should and should not be done
Court orders
#- 1.The applicant's notice of motion dated 5th March 2025 is dismissed
- 2.Each party shall bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Mombasa
- ELC Case No. 219 of 2016
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 51 of the Civil Procedure Rules; section 5 of the Judicature Act, Cap 8 (contempt jurisdiction of the Court of Appeal)
Relief refused
#Orders summoning the respondents to show cause why they should not be held in contempt and committing them to civil jail for up to six months
The applicant failed to prove contempt to the required standard; the order was broadly couched, did not prohibit fencing, and the respondents acted bona fide without mala fides
Costs
Each party shall bear their own costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the order did not prohibit fencing or any act intended to safeguard the suit property from trespass or invasion by third parties;
the applicant did not show that the offence complained of was committed, not by mere disregard of the court order, but by the deliberate and intentional violation of the court's dignity, repute or authority.
Accordingly, we reach the inescapable conclusion that the applicant's motion fails and is hereby dismissed.
Considering the nature of the dispute and the parties involved, to wit, a public trust in the nature of a Wakf and an Islamic institution, both of which were established in the general interest of the Islamic community, we hereby order and direct that each party shall bear their own costs of the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Islamic Foundation v Aly (as trustee of the Wakf Properties of Ali Bin Mohamed alias Muses Mohamed) & 2 others", Case Analysis (2025). Civil Appeal (Application) E064 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2242/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.