LMK Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 59 (KLR)
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 application could proceed despite the supporting affidavit referring to an application dated 5th September 2025 instead of 11th September 2025
- 2.Whether the supporting affidavit sworn by the 2nd Respondent without written authority from the 3rd Respondent rendered parts of the application inadmissible
- 3.Whether the Appellants were in contempt of the status quo orders issued on 2nd July 2024 by fencing and ploughing the suit property
- 4.Whether an injunction should issue restraining the Appellants from further dealings with the suit property pending the appeal
Key legal issues
#Whether contempt of the status quo orders of 2nd July 2024 was established
No contempt was committed; the fencing prohibition was directed at the respondents in the earlier application, who are the present applicants, not the Appellants who fenced the land
The Court reconstructed the status quo: the Appellants were in possession when the orders issued, and the orders prohibited the respondents from selling, transferring, fencing, developing or subdividing. The orders did not stop farming or ploughing, and the party in possession could reasonably protect the property from waste. The present applicants were the respondents in the earlier application, so the fencing prohibition bound them, not the Appellants. The standard of proof is almost beyond reasonable doubt, and it was not met.
Whether an injunction could issue against the Appellants pending the appeal
The injunction prayer failed on the Giella v Cassman Brown principles
Under Order 42 Rule 6(6) the Court may grant a temporary injunction in an appeal, but the applicant must show a prima facie case, irreparable loss, and balance of convenience. The applicants had neither appealed nor cross-appealed, so had no arguable appeal; their fear of future development was unsupported speculation; and since the Appellants were in occupation, the balance of convenience favoured them.
Defective supporting affidavit and want of written authority
The Court treated the mis-description of the application date as an error and considered the application on substantive justice, but struck out as inadmissible hearsay depositions relating to facts within the 3rd Respondent's exclusive knowledge, as no written authority was filed under Order 1 Rule 13
The supporting affidavit deposed that it supported an application of 5th September 2025 when the application was dated 11th September 2025; strictly it would be incurably defective. Guided by Article 159(2)(d) the Court treated this as an error. However, the deponent asserted authority to swear on behalf of the 3rd Respondent without filing written authority as required by Order 1 Rule 13(2), so his assertions of fact on the 3rd Respondent's behalf were untrue and inadmissible.
Legal principles established
#- The standard of proof in contempt proceedings is higher than proof on the balance of probabilities, almost but not exactly beyond reasonable doubt
- Six ingredients must be proved for contempt: an existing, clear and unambiguous order directed at the alleged contemnor, service or knowledge, failure to obey, and deliberate disobedience
- Court orders bind parties whether served or not, provided the order is directed to them and they have knowledge of it
- An injunction sought on appeal requires the applicant to show an arguable appeal as the prima facie case, and unsubstantiated apprehension of future harm is not irreparable loss
Court orders
#- 1.The application dated 11th September 2025 is dismissed with costs to the Respondents
- 2.Judgment in the instant appeal to be delivered on 22nd January 2026 as directed before
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(d) of the Civil Procedure Act; Section 5(1) of the Judicature Act; Article 159 of the Constitution; Order 51 of the Civil Procedure Rules 2010
Relief refused
#Citation of George Peter Kaluma and LMK Investments Limited for contempt and their sanction by committal to civil jail, sequestration, fine
The applicants themselves were the parties bound by the fencing prohibition in the status quo orders; the Appellants did not breach the orders
Order compelling the Appellants to demolish the fence and OCS Homa Bay Police Station oversight
Contempt not established; the party in possession was entitled to protect the property
Injunction restraining the Appellants from further dealings and/or developments on the suit property pending appeal
Applicants filed no cross-appeal and showed no prima facie case; feared harm was speculative
Costs
The application dated 11th September 2025 is dismissed with costs to the Respondents (the Appellants).
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 upshot is that the application dated 11th September 2025 fails. It is dismissed with costs to the Respondents.
The judgment in the instant appeal to be delivered on 22nd January 2026 as directed before.
the Respondents in the instant application did not do any acts that constituted contempt of court as alleged
the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt
imagination about what is likely to occur but whose foregrounding occurrence evidence is not demonstrated cannot amount to irreparable harm
One, the Appellants who are now the Respondents were the ones in possession of the suit property at the time of issuance of the orders
Issues in the judgment
#The supporting affidavit was deposed as supporting an application dated 5th September 2025 whereas the application before the Court is dated 11th September 2025
The parties' roles are internally inverted: the notice of motion states the Respondents moved the court against the Appellants, but the individuals named as contemnors (George Peter Kaluma and LMK Investments Limited) are described elsewhere as the 1st Appellant and the party whose Replying Affidavit supports the Appellants
The deponent claimed authority to swear on behalf of the 3rd Respondent but annexed no written authority
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "LMK Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 59 (KLR)", Case Analysis (2026). Environment and Land Miscellaneous Application dated 11th September 2025 (arising from an appeal at the Environment and Land Court, Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/59/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.