Simonash Investment Ltd v Kenya National Highways Authority & 2 others (Constitutional Petition 15 of 2019) [2025] KEELC 7917 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether contempt of court was established against the 1st Respondent's officers
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
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.
Whether the Director General should be compelled to settle the decretal amount
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
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.
Whether the application was unopposed as submitted by the Petitioner
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
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.
Legal principles established
#- 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
#- 1.The Petitioner's Notice of Motion dated 23rd April 2025 is dismissed in its entirety
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.