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MagistrateDismissedNot stated in the judgment (application dated 15/10/2024 in pending suit)· [2025] KEMC 256 (KLR)

Nzomo & 10 others v Kivuva & 12 others; Mwova t/a Kitise Pharmacy & 8 others (Tenant) (Environment and Land Case E036 of 2023) [2025] KEMC 256 (KLR)

Magistrates' Court
9 October 2025
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt application because the applicants couldn't prove tenants were actually served with the court order they allegedly disobeyed.

What this practically means

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Executive summary

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The plaintiffs, by a notice of motion dated 15/10/2024 under Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63 of the Civil Procedure Act, sought committal of the tenants of commercial plot No. 86 Makindu for contempt of an order issued on 20/8/2024 directing that rent be deposited into a specified KCB account pending determination of the suit, or alternatively a fine, with costs. The tenants opposed, denying they were parties to the suit, denying service of the order, and asserting they had been instructed by the landlord's representative to stop paying rent. The defendants also opposed, denying service of the order and penal notice, and averring that the tenants had since complied and were depositing rent into the account, rendering the application overtaken by events. The court framed three issues: whether the tenants were in contempt, whether they ought to be punished, and costs. It confirmed its jurisdiction to punish for contempt under section 10 of the Magistrates Court Act, adopted the standard of proof in contempt as higher than balance of probabilities but below beyond reasonable doubt, and outlined the elements of civil contempt drawn from Carey v Laiken and other authorities. However, examining the affidavit of service, the court found the process server did not explain how he located the premises or identified the tenants, and was not satisfied that the tenants were served with the order. Since knowledge of the order is a prerequisite to wilful disobedience, the application failed on that ground alone. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the tenants were in contempt of the order of 20/8/2024 directing deposit of rent into a specified account

Holding

No - service of the order on the tenants was not proved, so knowledge of the order and wilful disobedience were not established

Reasoning

The applicants relied on an affidavit of service by Julius Mwololo Mbithi purporting to serve all ten named tenants. The court found the process server did not explain how he located the premises or identified the tenants, nor whether they were served together or separately. Without proof of service, knowledge of the order could not be established, and without knowledge there can be no wilful disobedience. The application failed on that ground alone.

p. 7
02

Jurisdiction of the magistrates' court to punish for contempt

Holding

The court has jurisdiction under section 10 of the Magistrates Court Act and sections 63(c) of the Civil Procedure Act / Order 40 rule 3 of the Civil Procedure Rules

Reasoning

Section 10 of the Magistrates Court Act confers power on the court to punish for contempt, including wilful disobedience of judgments, decrees, directions or orders in civil proceedings. Section 63(c) of the Civil Procedure Act and Order 40 rule 3 permit committal to prison for up to six months for disobedience of an injunction. Taken together, these provisions confirm the court's jurisdiction over this contempt application.

p. 5
03

Standard of proof and ingredients of civil contempt

Holding

The standard is higher than balance of probabilities but below beyond reasonable doubt; the applicant must prove a clear and unambiguous order binding on the contemnor, knowledge or proper notice, breach, and deliberate conduct

Reasoning

Relying on Republic v Mohammed (Supreme Court) quoting Mutitika v Baharini Farm, the court held the standard in contempt is almost but not exactly beyond reasonable doubt because liberty of the subject is at stake. Adopting Carey v Laiken and Contempt in Modern New Zealand, the court outlined the elements: clarity of the order, actual knowledge or proper notice, breach, and deliberateness - all to be established by the applicant.

p. 5

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below beyond reasonable doubt
  • Contempt cannot be established unless the contemnor had knowledge of the order and deliberately and wilfully disobeyed it
  • A magistrates' court has power to punish for contempt under section 10 of the Magistrates Court Act

Court orders

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  1. 1.The application dated 15/10/2024 is dismissed
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Section 10 of the Magistrates Court Act; sections 63(c) of the Civil Procedure Act and Order 40 rule 3 of the Civil Procedure Rules

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, "Nzomo & 10 others v Kivuva & 12 others; Mwova t/a Kitise Pharmacy & 8 others (Tenant) (Environment and Land Case E036 of 2023) [2025] KEMC 256 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 15/10/2024 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/256/eng@2025-10-09

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