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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 6889 (KLR)

Ndege v Bogonko & another (Environment and Land Case 113 of 2018) [2025] KEELC 6889 (KLR)

Environment and Land Court
9 October 2025
MMM.D. Mwangi
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to jail a land seller for contempt because the buyer demanding compliance had herself not fully paid the court-ordered refund with interest.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.D. Mwangi, J) determined a Notice of Motion by the Plaintiff/Applicant seeking the committal of the 1st Defendant/Respondent to civil jail for contempt of the judgment delivered on 20th February 2015. That judgment had directed the Applicant to refund the 1st Defendant Kshs. 300,000 plus interest from October 2010 within sixty days, failing which the 1st Defendant could sell the suit property, Kajiado/Kitengela/16917, and directed release of the original title deed upon payment. The Applicant deposed that she tendered banker's cheques for Kshs. 300,000, first rejected on the basis of a stay order and again after the court dismissed the 1st Defendant's objections on 28th October 2016, yet the Respondent withheld the title. The Respondent opposed, contending the motion was defective for want of an extracted decree served with a penal notice, and that the Applicant herself was in default for tendering cheques without interest and outside the sixty-day window. He also cited his pending appeal before the Court of Appeal. The court framed a single issue: whether the Applicant established a basis to cite the Respondent for contempt. Applying Katsuri Limited v Kapurchand Depar Shah, the court held that the Applicant had not fully satisfied the decree, having tendered the principal without interest and after the sixty days lapsed, so the decretal sum remained unsatisfied. Invoking the clean-hands principle and Section 94 of the Civil Procedure Act, the court held that a decree cannot be enforced in part while ignoring costs or other components absent express leave. The Motion was dismissed in its entirety with costs to the 1st Defendant/Respondent.

Key legal issues

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01

Whether the 1st Defendant was in contempt of the judgment of 20th February 2015

Holding

No contempt was established; the Applicant herself was in default of the decree and the court cannot impose punitive orders in her favour

Reasoning

The judgment required the Applicant to pay Kshs. 300,000 plus interest within sixty days, failing which the 1st Defendant could sell the land. The Applicant tendered only the principal, without interest, long after the sixty days lapsed. The decretal sum therefore remained unsatisfied. Applying the Katsuri Limited requirements and the clean-hands principle, the Applicant could not accuse the Respondent of disobedience while in default herself. Section 94 of the Civil Procedure Act also bars partial enforcement of a decree without leave.

p. 3
02

Whether a decree can be executed in part before costs and other components are ascertained or paid

Holding

A decree cannot be enforced in part while ignoring costs or other essential components unless leave is granted and the court expressly orders so

Reasoning

Section 94 of the Civil Procedure Act permits execution of a decree before costs are ascertained only where the court so orders. Absent such an order, a party seeking execution must satisfy the decree in its entirety, including interest and costs. The Applicant neither sought nor obtained leave for partial execution, so her tender of the principal alone was ineffective.

p. 3

Legal principles established

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  • To succeed in contempt, the applicant must demonstrate a valid order, service of it with a penal notice, knowledge, and deliberate disobedience
  • A decree cannot be enforced in part while deliberately ignoring costs or other essential components unless leave is granted and the Court expressly orders so
  • Tendering the decretal principal without interest does not amount to compliance with the judgment

Court orders

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  1. 1.The Notice of Motion dated 10th February 2017 is dismissed in its entirety
  2. 2.Costs of the application awarded to the 1st Defendant/Respondent

Authorities

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Legislation

  • Judicature Act, Cap 8 Laws of KenyaSection 5
  • Civil Procedure RulesSection 33
  • Civil Procedure ActSection 94

Cases cited (1)

  • Katsuri Limited v Kapurchand Depar Shah
    [2016] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act, Cap 8 Laws of Kenya and Section 33 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndege v Bogonko & another (Environment and Land Case 113 of 2018) [2025] KEELC 6889 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6889/eng@2025-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.