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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 6965 (KLR)
Mbithi v Kitonga & 3 others (Environment and Land Case 9A of 2023) [2025] KEELC 6965 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The 1st defendant applied under Order 40 Rules 3, 4 and 10 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Article 159 of the Constitution, seeking attachment of the properties of the plaintiff and the 2nd to 4th defendants and their detention at Malindi Prison for six months for disobeying interim injunction orders issued on July 2, 2023, restraining dealings with Plot No. 115 Mariakani Town. The applicant contended that despite the orders and a failed mediation, the plaintiff obtained a survey plan and title deed, with the 2nd to 4th defendants facilitating registration. The plaintiff denied service and said nothing prevented him from obtaining his lease; the 2nd to 4th defendants denied service and knowledge. Applying the test in Samuel M.N. Mweru & Others v National Land Commission, the court found that all parties were aware of the orders, as evidenced by correspondence and the mediator's observation that each party had obtained survey maps and new titles. However, rather than imposing contempt sanctions, the court directed a Notice to Show Cause to the 2nd to 4th defendants to explain their roles in registering the suit properties while the orders were in effect. The application was allowed only to that extent, with costs in the cause. Judgment delivered virtually at Malindi on October 9, 2025 by E. K. Makori J.
Key legal issues
#01
Whether contempt of the injunctive orders of July 2, 2023 was proven to the required standard
Holding
The court found all parties were aware of the orders but declined to impose contempt sanctions immediately, directing a Notice to Show Cause against the 2nd to 4th defendants
Reasoning
Applying the Samuel M.N. Mweru test, the court found that although the plaintiff and 2nd to 3rd defendants alleged non-service, they were aware of the orders, as shown by correspondence and the mediation record where new survey maps and registered titles emerged despite the injunction. Given the disputed service, the court issued an NTSC rather than imposing attachment or detention.
p. 3
Legal principles established
#- Elements of civil contempt: the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure to comply; wilfulness and bad faith are then inferred unless rebutted on a balance of probabilities
- The standard of proof in civil contempt is higher than in ordinary civil cases
Court orders
#- 1.Notice to Show Cause issued to the 2nd to 4th defendants to explain their roles in registering the suit properties while the court orders halting the exercise were in effect
- 2.Costs in the cause
- Jurisdiction invoked
- Order 40 Rules 3(1), (2) and (3), 4 and 10 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbithi v Kitonga & 3 others (Environment and Land Case 9A of 2023) [2025] KEELC 6965 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6965/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.