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ELCDismissedRuling in the Originating Summons relating to L.R. No. 3589/47 (Notice of Motion dated 31st October 2025)· [2026] KEELC 1935 (KLR)

Mathenge & another v Ouko & 4 others (Enviromental and Land Originating Summons E027 of 2023) [2026] KEELC 1935 (KLR)

Environment and Land Court
5 March 2026
LKL.G. Kimani
3,704 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a contempt claim because the court order relied on did not clearly prohibit what the applicant alleged.

What this practically means

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Executive summary

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Thompson Hull Limited, the 5th Respondent in the underlying Originating Summons, moved the Environment and Land Court at Nairobi by a Notice of Motion dated 31st October 2025 seeking a finding that the Respondents were in contempt of orders issued on 26th September 2024, an order to purge contempt, police enforcement, and costs. It alleged that the Respondents registered a restriction over L.R. No. 3589/47 and dispatched over one hundred goons who evicted the Applicant, destroyed property and detained motorbikes. The Respondents, through a Replying Affidavit of Jonathan Wanjohi, denied contempt, asserted continuous possession, and claimed it was the Applicant who attempted forcible eviction. The sole issue was whether the Respondents were in contempt of the orders of 26th September 2024. Reviewing Justice Omange's Ruling, the court found the operative orders were an injunction restraining construction and transfer of the suit property only, and that no general status quo order or possession order was made. Applying the four elements for civil contempt, the court found knowledge established, but held the alleged acts either lacked independent evidentiary support or fell outside the order's specific prohibitions - registration of a restriction being neither construction nor transfer. Emphasising that contempt is quasi-criminal, requires strict construction, cannot rest on implication, and that ambiguity benefits the alleged contemnor, the court dismissed the Notice of Motion with costs to the Respondents.

Key legal issues

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01

Whether the orders of 26th September 2024 were clear and unambiguous

Holding

The Court did not order a general maintenance of status quo; the operative injunctive relief only restrained construction and transfer of the suit property, and did not expressly restrain entry or change of possession.

Reasoning

On a plain reading of the extracted orders from Justice Omange's Ruling of 26th September 2024, the express restraint related only to construction and transfer. No positive order reinstating any party into possession was granted. Contempt being quasi-criminal, the order alleged to be breached must be precise and unequivocal, and this order was not.

p. 7
02

Whether the Respondents knew the order

Holding

Knowledge was inferred from the parties' presence at delivery of the Ruling; this limb was satisfied.

Reasoning

There was no dispute that the parties were present when the Ruling was delivered, so knowledge of the order could properly be inferred against them. On this limb alone the Applicant succeeded.

p. 8
03

Whether there was wilful disobedience of the order

Holding

No. The alleged acts (registration of a restriction, alleged invasion and eviction) either contradicted each other on the evidence or fell outside the specific prohibitions of the order.

Reasoning

The allegations by both sides were serious and mutually contradictory, with no independent or corroborative evidence (beyond a bare OB reference) showing the Respondents carried out the invasion. Registration of a restriction is not construction or transfer, and the order contained no express prohibition against a change of possession. Doubt must benefit the alleged contemnor.

p. 8

Legal principles established

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  • Contempt proceedings are quasi-criminal and demand strict construction; the order allegedly breached must be precise and unequivocal.
  • Contempt cannot be founded on implication or inference; ambiguity is resolved in favour of the alleged contemnor.
  • The standard of proof in civil contempt is higher than balance of probabilities but lower than beyond reasonable doubt.
  • Four elements must be proved for civil contempt: clear and unambiguous order binding on the respondent, knowledge of the order, failure to comply, and deliberate conduct.
  • Contempt is a remedy of last resort and must be exercised with restraint.

Court orders

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  1. 1.The Notice of Motion dated 31st October 2025 is dismissed
  2. 2.Costs of the application shall be borne by the Applicant
Jurisdiction invoked
Section 5 of the Judicature Act and section 29 of the Environment and Land Court Act

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, "Mathenge & another v Ouko & 4 others (Enviromental and Land Originating Summons E027 of 2023) [2026] KEELC 1935 (KLR)", Case Analysis (2026). Ruling in the Originating Summons relating to L.R. No. 3589/47 (Notice of Motion dated 31st October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1935/eng@2026-03-05

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