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ELCDismissedKisumu ELC Petition (ruling on Notice of Motion dated 23rd April 2025; earlier judgment of 21st December 2022)· [2025] KEELC 7917 (KLR)

Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2025] KEELC 7917 (KLR)

Environment and Land Court
13 November 2025
4,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A landowner's bid to jail KeNHA officials for contempt failed because no enforceable court order actually existed for them to disobey.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (S. Okong'o, J) on the Petitioner's Notice of Motion dated 23rd April 2025 seeking contempt findings against the Director General and Senior Legal Officer of the Kenya National Highways Authority (KeNHA) and an order compelling the Director General to settle a decretal sum arising from judgment of 21st December 2022 awarding Kshs. 2,000,000 with costs taxed at Kshs. 181,820. The Petitioner alleged that despite the judgment and decree, KeNHA resumed trespass on its land, Kisumu/Kanyakwar 'A'/80, demolishing part of its building and continuing road and drainage construction. KeNHA opposed, contending that no injunction existed to disobey, that the disputed works were within the road reserve, and that an unresolved boundary dispute between the parties had never been resolved. The court framed two issues: whether contempt was made out against the officers, and whether the Director General should be compelled to pay the decree. Relying on established contempt principles requiring willful disobedience of a clear, existing order known to the contemnor, the court found that the permanent injunction sought in the petition had not been granted in the 2022 judgment, so there was no order to disobey, and the photographic evidence did not establish trespass on land whose boundary remained general and unfixed. On enforcement, the court reiterated its ruling of 2nd October 2024: KeNHA's property is protected from attachment by Section 68 of the Kenya Roads Act, and the lawful route is demand on the Director-General, failing which judicial review for mandamus. Since the judgment was against KeNHA, not its Director General, no contempt lay against him absent a prior order directing payment. The application was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether contempt of court was established against the 1st Respondent's officers

Holding

Contempt was not proved; the alleged disobedience related to a permanent injunction that was never granted, and the photographs did not establish trespass on the suit property

Reasoning

The court compared the prayers sought in the petition with the decree extracted. The permanent injunction restraining trespass was sought but not granted in the 21st December 2022 judgment. Without an existing restraining order there can be no disobedience. Further, the suit property's boundary was general and unfixed, so the photographs could not establish that the Respondent's works amounted to trespass. The high threshold for committal, involving possible deprivation of liberty, was not met.

p. 8
02

Whether the Director General should be compelled to settle the decretal amount

Holding

The court declined to compel the Director General, since the decree was against the 1st Respondent, not against him, and no prior order directing him to pay had been made and defied

Reasoning

The court reiterated its earlier ruling of 2nd October 2024 setting out the lawful execution route against the statutory body: demand on the Director-General to settle out of the authority's revenue under Section 68 of the Kenya Roads Act, and in default, judicial review for mandamus, with contempt proceedings only if a mandamus were defied. The Petitioner had not invoked that procedure, and the Director General could not be in contempt of a judgment he was not party to.

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Whether the application was unopposed as submitted by the Petitioner

Holding

The application was opposed; the 1st Respondent's affidavits were on record though filed late, and the proper course was to seek expungement, not to ignore them

Reasoning

The record showed the 1st Respondent's advocate stated an affidavit was filed in opposition and obtained leave to file a supplementary affidavit, which was filed out of time. The court held that the late filing should have been the ground of complaint, and that the court cannot ignore an affidavit on record. The Petitioner's submissions and the Respondent's late filings were both considered.

p. 6

Legal principles established

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  • A person cannot be held in contempt of an order that does not exist; contempt requires willful and deliberate disobedience of a clear, precise order of which the contemnor had knowledge.
  • Knowledge of a court order suffices to dispense with proof of personal service in contempt proceedings.
  • A statutory officer cannot be punished for failing to settle a judgment debt against the corporate body unless the court has ordered him to pay in discharge of his statutory duty and he has willfully refused.
  • Execution against a government agency protected by statute (Kenya Roads Act s.68) must follow the prescribed procedure, namely demand on the Director-General and, in default, an order of mandamus.
  • It is the plain obligation of every person against whom a court order is made to obey it unless and until it is discharged.

Court orders

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  1. 1.The Petitioner's Notice of Motion dated 23rd April 2025 is dismissed in its entirety
  2. 2.Each party shall bear its own costs of the application
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over contempt and enforcement of its own decree (earlier judgment of 21st December 2022)

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, "Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2025] KEELC 7917 (KLR)", Case Analysis (2025). Kisumu ELC Petition (ruling on Notice of Motion dated 23rd April 2025; earlier judgment of 21st December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7917/eng@2025-11-13

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