Papiyio Investments Ltd v Murero & 6 others

2. i. The title has been transferred to the respondent, the status quo to be maintained is that it remains in the name of the respondent and shall not be transferred to another party. ii. The applicant is the one currently in the premises. iii. That Civil Appeal No. E181 of 2025 shall be heard on priority basis. iv. We direct the applicant to le and serve their submissions together with the authorities within the next 21 days. Upon service, the respondent to le and serve their submissions and bundle of authorities within 21 days. Thereafter, the appeal to be xed for hearing on priority basis in the next term. v. Costs will abide the outcome of the appeal. Papiyio Investments Limited (the applicant) is now before this Court vide its application dated 23rd June 2026 premised on Rules 3, 43 and 44 of the Court of Appeal Rules, 2022; Section 5 of the Judicature Act; Rule 81.4 of the English Civil Procedure Rules and the inherent jurisdiction of this Court seeking a raft of reliefs as follows: a. The 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents be cited for contempt for disobeying: i. The order of this Court dated 14th January 2026 issued in Civil Appeal (Application) No. E124 of 2025 which dened the status quo to mean, inter alia, that the applicant is the party currently in occupation and possession of the property known as Narok/ CIS Mara/Lemek/190 (Mara River Lodge); and ii. The status quo order (with Penal Notice) issued by the Environment and Land Court at Narok on 23rd September 2025 in ELC Suit No. E006 of 2024; b. The 1st , 2nd , 3rd , 4th , 5th , 6th and 7th respondents be found guilty of contempt for willfully, deliberately and contumaciously disobeying the said orders; c. The 4th respondent be found guilty of contempt of the status quo order issued by the Environment and Land Court at Narok on 23rd September 2025 for unlawfully facilitating changes to the land register for Narok/CIS Mara/Lemek/190 on 24th September 2025; d. That pending the hearing and determination of this application and the substantive appeal, this Court do issue an order of injunction restraining the 1st, 2nd, 3rd 4th , 5th , 6th and 7th respondents by themselves or their agents from in any manner interfering with the applicant's possession, occupation and use of the said land and all the improvements thereon; e. That this Court do issue an order requiring the 5th , 6th and 7th contemnors or their servants to forthwith vacate the said property and cease all operations thereon; f. That this Court do order the 1st, 2nd, 3rd , 5th , 6th and 7th respondents to forthwith restore the applicant to full, quiet and peaceful possession of the said property; ; g. That this Court do direct the 4th respondent to cancel the entries made in respect of suit property on or after 23rd September 2025, namely-the rectication of the proprietorship register eected on 24th September 2025, the registration of a 25-year lease in favour of the 5th contemnor registered on 24th September 2025; and the registration of a lease in favour of the 7th respondent dated 22nd December 2025 and registered thereafter. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 2

page 2 of 11

3. h. This Court do order the proceedings in Business Premises Tribunal (BPRT) at Nakuru Case No. E008 of 2026 [AVN Oltien Tours and Safaris Limited v. William Rakita Murero, Daniel Murero & Papiyio Investments Limited] be struck out for being an abuse of the process of the Court for being commenced as a collateral challenge to the orders of this Court; i. That the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents do, jointly and severally, compensate the applicant and David Livingstone Limited t/a Mara River Lodge for all losses and damages suered as a direct result of the contemptuous acts, the same being quantied as not less than Kshs.295,802,430/- and USD 16,631,700) as at 31st May 2026; j. That in the event of non-compliance with any of the above orders, this Court be pleased to commit the 1st , 2nd, 3rd, 4th, 5th, 6th and 7th contemnors and/or their directors and/or substantive oce holders to civil jail for a period not exceeding 6 months, or impose such nes and sanctions as the Court may deem appropriate; k. That the contemnors do pay the costs of this application on a full indemnity basis; and l. That this Court be pleased to grant such further or other relief, orders or directions as it may deem just and t in the circumstances. The application is premised on a range of grounds, namely: (a) the judgment delivered on 18th September 2025 in ELC Petition No. E006 of 2024 ordered the cancellation of the applicant’s title to Land Parcel Narok/Cismara/Lemek/190 (the land) and declared the 3rd respondent the registered proprietor of the said land notwithstanding the fact that the land was transferred to the applicant by the 3rd respondent in the year 2007; (b) the applicant has appealed against the said decision in Civil Appeal No. COACA/E181/2025, (the appeal) which raises substantial issues of law and fact, to wit: i. the Court erred in nding that the 1st, 2nd & 3rd respondents were the registered proprietors of the said land; ii. the trial Judge failing to consider the 1st, 2nd, and 3rd contemnors admission that they had transferred the land; iii. the learned Judge failing to consider the presumption of regularity in the transfer of the land from the 1st, 2nd and 3rd contemnors to the applicant on 26th July 2007; iv. the Learned Judge issued orders which aided the 1st, 2nd and 3rd contemnors whose case was founded on an illegal act; v. the learned Judge failing to take into account that the 1st and 2nd contemnors were the initial shareholders/directors of the applicant at the time of the impugned transfer; vi. the learned Judge erred in nding that there were ongoing succession proceedings notwithstanding the Certicate of Conrmed Grant issued on 15th September 2006 in the Estate of John Tupunet Murero; vii. the learned Judge erred in failing to nd that the Estate of John Tupunet Murero, had on the strength of the grant transferred the land to the 1st, 2nd and 3rd contemnors who transferred the property to applicant in 2007; viii. the learned Judge issued a judgment against the weight of the evidence; ix. the applicant is the lawful purchaser for value of the land from the 1st and 2nd contemnors, who sold the same as trustees of the deceased estate, and it has been in peaceful possession since 2007. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 3

page 3 of 11

x. the applicant and its shareholder/director, have over the last 36 years made enormous investments on the land, having developed a 100-room hotel and tourism complex currently valued at Kshs.1,830,000,000/-. xi. the applicant has learnt that the 3rd contemnor has caused the land register to be rectied to identify it as the registered owner of the property notwithstanding an order of status quo issued by the ELC at Narok. xii. the applicant has learnt that the 3rd contemnor has issued a lease for a period of 30 years to the 5th contemnor, a non-existent entity. xiii. Ibrahim Murero, a member of the deceased’s family, has severally invaded the land and issued threats to the applicant’s sta in the presence of guests, thus interfering with the operations of the hotel. xiv. the applicant is apprehensive that the contemnors or their agents may enter, evict or otherwise interfere with its possession of the land in execution of the judgment, actions which would cause irreparable harm and render the appeal nugatory. xv. the subject matter is not a money decree and once the land is interfered with or alienated, it cannot be restored to its current state, hence the need for preservation. xvi. the balance of convenience and the interests of justice dictate that the status quo be preserved pending the hearing and determination of the appeal. xvii. the application has been led without delay and in good faith and in the interest of justice, the orders sought herein ought to be granted. 1. The application is premised on an array of 25 grounds many of which are verbose and repetitive. In summation, the applicant claims that: (a) this Court on 14th January 2026 ordered the status quo to be maintained, which meant that the land shall remain in the respondent’s name and it shall not be transferred to any other party, and, that the applicant was in occupation of the land. However, in blatant breach of the said order, on 24th September 2025 the 1st, 2nd and 3rd respondents caused the 4th respondent to unlawfully eect changes in respect of the title as follows: (i) the 3rd respondent was registered as the proprietor of the property; and (ii) registration of a 25-year lease commencing from 1st July 2024 in favour of the 5th respondent was registered, (b) the Kenya Business Registration Service has conrmed in writing that the 5th respondent does not appear in its database, hence, the said lease is a sham. (c) on or about 29th November 2025, the 1st , 2nd and 3rd respondents, acting by themselves and through their agents including one Ishmael Murero, forcibly and illegally invaded and occupied the applicant's Mara River Lodge located on the suit land. The incident was reported to the police; (d) during the invasion or thereafter, the respondents and their associates stole the applicant's motor vehicle registration number KAM037Z (Toyota Cruiser HZJ75) together with other vehicles and machinery as reported at Aitong Police Post under O.B. No. 03/01/12/2025 at 0924 hrs. Further, on or around 2nd December 2025, they carted away hotel room keys, goods and other items and took over and misappropriated the applicant's Booking.com account, thereby causing severe reputational damage. Also, the 1st , 2nd, 3rd , and 5th contemnor procured a second fraudulent lease over the property purportedly dated 22nd December 2025 and registered in favour of the 6th respondent, which was registered after the invasion https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 4

page 4 of 11

of 29th November 2025, and after the institution of these appellate proceedings. The applicant also claims that on 14th January 2026, the same day this Court issued the status quo order, the 6th respondent caused or procured the 7th respondent to be appointed as sole Manager of the property. The applicant maintains that the respondents’ conduct is deliberate, willful and in bad faith and is calculated to disregard the orders of this Court and of the ELC. 5. The application is vehemently opposed. The 1st, 2nd and 3rd respondents led the replying adavit dated 24th July 2026 sworn by Daniel Saitoti Murero, the 2nd respondent. He claried that he swore the adavit basically on his own behalf because he could not obtain consent from the 1st respondent who is ailing after suering from stroke. His salient averments are: (a) on 14th January 2026, this Court granted the applicant 14 days to le and serve his submissions in support of his appeal, but he never complied; (b) the instant application is incompetent because it is unsigned and not paginated; (c) the annexture to the adavit of service does not specify details of the document alleged to have been served; (d) he was not personally served with the order; (e) the 5th, 6th and 7th respondents are not parties to the suit; (f) the applicant seeks orders against proceedings before the BPRT; (g) the trial court cancelled the applicant’ title; (h) the application seeks to alter the status quo on the land, yet the respondents are in occupation. 6. The 4th respondent did not le a reply to the application nor was he represented in court despite having been served with a hearing notice. 7. The 5th respondent led a replying adavit dated 21st July 2026 sworn by its director Mr. Antony Kanyioni Ntutu. Its key highlights are: (a) the 5th respondent was not a party to the proceedings and it cannot be in contempt since it took possession before the orders were issued, and in any event, it was not served with the orders; (b) it entered into a lease and took possession before the orders in question were issued, and, (c) the Court of Appeal and the ELC conrmed the cancellation of the applicant’s title. 8. The 6th and 7th respondents led a notice of a preliminary objection dated 13th July 2026 stating that: (a) they were not parties to the proceedings in which the orders in question were issued; (b) Rule 44 does not confer this Court with powers to determine contested issues of fact; (c) the application is incompetent to the extent it seeks to punish for contempt of orders issued by the ELC and in any event, they were not parties in the proceedings; (d) the orders seeking restoration in the premises are incompetent because the Court is being urged to issue nal orders; (e) the prayer seeking to strike out proceeding before the BPRT is incompetent; (f) the prayer seeking damages is incompetent because it cannot be issued on an application; (g) the application is an abuse of Court process. 9. The applicant led a 50-paragraph supplementary adavit dated 27th July 2026 sworn by Patel Gopal Dhanji Velji, its director in response to the 1st, 2nd, 3rd, 5th, 6th and 7th respondents’ replying adavits and the preliminary objection mainly disputing the contents of the said adavits and the preliminary objection. He maintained that the application was duly signed and exhibited a signed copy and even if they were unsigned, the omission is curable under Article 159 (2) (d) of the Constitution. Further, the 2nd contemnor admits that his advocate was served via e-mail. Further, the 1st, 2nd and 3rd Respondents’ counsel was present when the orders were issued. He questioned the 1st contemnor’s alleged incapacity caused by illness. He maintained that the order in question was served. 10. In a nutshell, in support of the application, learned counsel for the applicant Mr. Michuki submitted that this Court has inherent and statutory jurisdiction to punish for contempt of its own orders. This authority, he argued is supported by Section 5 of the Judicature Act and the relevant Rules. In support https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 5

page 5 of 11

of this assertion, he cited Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] eKLR. 11. Counsel underscored that the elements of contempt include a clear order, knowledge of the order, ability to comply and deliberate disobedience. He argued that proof of contempt requires showing that the order was unambiguous, the respondents knew of it and their acts were willful. To buttress this argument he cited Mutikila vs. Baharini Farm Ltd [1985] KLR 229 to emphasize that the standard of proof in civil contempt is higher than a balance of probabilities but lower than beyond reasonable doubt. He maintained that if the advocate is aware of the order, then knowledge of the order is imputed on the client. To buttress this assertion, he cited Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR to urge that knowledge of an order by an advocate is imputed on the client, therefore, personal service is not always required. 12. Mr. Michuki also argued that service of the order can be dispensed with if the contemnor has actual knowledge of the order, especially if he was present in Court at the time the order was issued. He relied on the High Court decision in Samuel M. N. Mweru & Others vs. National Land Commission & 2 Others [2020] eKLR to assert that the elements of contempt include (a) a clear order, (b) knowledge, (c) ability to comply and (d) deliberate disobedience. 13. Counsel maintained that the application is procedurally proper and that the irregularities cited by the contemnors are curable. He also argued that the BPRT proceedings are a collateral attack to these proceedings and an abuse of process, because the said proceedings have totally ignored a subsisting Court order. It was also his submission that court orders must always be obeyed until they are varied or set aside. In addition, disobedience constitutes contempt regardless of the party’s views on correctness of the order. 14. Mr. Michuki cited Seaward & Others vs. Paterson [1897] 1 Ch 545 and Wildlife Lodges Ltd vs. County Council of Narok & Another [2005] 2 EA to assert that non-parties who knowingly assist in breaching a court order are liable for contempt. He maintained that knowledge of an injunction or stay makes third parties liable if they act to frustrate it. He relied on Hadkinso vs. Hadkinson [1952] 2 ALL ER 567 and Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2025] 1 KLR 828 to urge that court orders must always be obeyed. Lastly, counsel relied on Clarke vs. Chadburn [1985] 1 WLR 78 in support of the principle that acts done in breach of a court order are void. In a nutshell, the authorities cited by Mr. Michuki reinforce the sanctity of court orders. 15. Learned counsel Mr. Kinyanjui representing the 1st, 2nd and 3rd respondents described the application as incompetent and fatally defective for being unsigned and lack of a verifying adavit, and that contrary to the rules, the application is not paginated, and the margins are not marked or indexed. He also submitted that the application seeks multiple reliefs, many of which are outside this Court’s jurisdiction or are improperly framed. Mr. Kinyanjui argued that this Court’s jurisdiction is appellate, therefore, it cannot determine issues before the ELC, and, that the applicant seeks numerous prayers which are unmerited. 16. Mr. Kinyanjui argued that the adavit of service does not specify the contents or details of the served document. He maintained that the 1st, 2nd and 3rd respondents were not personally served with the application or the contempt orders. Further, the alleged service is inconsistent with the rules requiring personal service in contempt cases. He also argued that the 1st respondent’s ailment casts doubts on the alleged service. 17. The 4th respondent (the Land Registrar, Narok) represented by the Honourable Attorney General, despite having been served, did not appear in Court or le any papers. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 6

page 6 of 11

18. Learned counsel Mr. Njuguna, for the 5th respondent submitted that his client was not a party to the proceedings, and that it was totally unaware of the Court order. Further, counsel argued that the orders were discharged before the application in question was led, negating the contempt. Counsel argued that the 5th respondent entered into a lease agreement and took possession before the alleged orders were issued. Lastly, he took issue with the fact that the application is unsigned and not indexed which renders it incompetent. 19. Mr. Njuguna submitted that contempt requires a valid court order, knowledge and deliberate disobedience. He submitted that the applicant failed to prove these elements against the 5th respondent. Further, the reliefs sought are based on contested issues which are best resolved through a full trial. In summation, counsel argued that the application does not meet the threshold for contempt and urged this Court to dismiss it with costs. He cited Samuel M. N. Mweru & others vs. National Land Commission & 2 Others [2020] eKLR which delineated the elements of contempt and Mutikila vs. Bahari Farm Ltd [1985] KLR 229 which set out the standard of proof in contempt cases and argued that the applicant has not met the required standard. He also cited Sheila Casstt Issenberg & Another vs. Antony Machatha Kinyanjui [2021] eKR which underscored the necessity of personal service. 20. Learned counsel Mr. Koech representing the 6th and 7th respondents cited absence of proper service and notice to his clients. He asserted that this Court’s jurisdiction to punish for contempt is limited to its own orders and not orders issued by other courts and in any event, the order in question was discharged before the alleged contempt. Further, the 6th and 7th contemnors’ acquisition of their interests predates the said order. He also submitted that the reliefs sought which include eviction and cancellation of titles are inappropriate in contempt proceedings. He argued that Rules 43, 44 and 45 cannot be used to seek substantive reliefs such as eviction or damages more so, in contempt proceedings. 21. At the outset, we commence this determination by agreeing with Mr. Kinyanjui’s assertion that the instant application is “ omnibus” in nature. The term "omnibus application" typically refers to a single application in which a party seeks multiple, often unrelated or distinct, forms of reliefs. Courts have consistently warned that bundling too many distinct prayers into one application can obscure the true nature of the relief sought, making it dicult for the respondent to answer eectively. We must stress that the Rules of this Court exist to ensure a fair and orderly ventilation of disputes. An omnibus application that bypasses specic procedural requirements must be abhorred, especially if one prayer depends on the outcome of the other relief sought. Omnibus applications create an untidy situation whereby the Court is being urged to determine totally unrelated prayers. (See Michael Kandie Kangogo vs. Mohamed Cheboi & 5 Others [2026] KECA Civil Application No. NAK E141 of 2025 (Nakuru)). Even though this decision was rendered in the context of a single judge jurisdiction vis a vis a full bench jurisdiction under the Court of Appeal Rules, 2022, the reasoning in the said case is relevant in the instant case. 22. A casual look at the prayers sought leaves no doubt that the applicant has mischievously replicated reliefs it had sought in the application dated 17th November 2025 which yielded the orders issued on 14th January 2026. In particular, in prayer (e) of the instant application, the applicant prays for an injunction pending the hearing of the appeal. In its previous application, the applicant prayed for “a temporary injunction restraining the respondents, their agents, servants, representatives, lessees and/or assigns from entering upon, trespassing, interfering with or in any other way dealing with Land Parcel No. Narok/ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 7

page 7 of 11

Cismara/Lemek/190 and all the hotel operations thereon.” The applicant cannot replicate prayers which it had sought in its previous application which was determined vide the ruling dated 14th January 2026. 23. A litigant cannot seek prayers in a new application if those exact prayers were already sought, evaluated and determined in a previous application in the same suit. When a party attempts to resurrect dead prayers, courts will promptly dismiss the application using three closely related legal doctrines: res judicata (sub-doctrine of issue estoppel), the prohibition of cyclical litigation, and the abuse of the court process. In Independent Electoral and Boundaries Commission (IEBC) vs. Maina Kiai & 5 Others [2017] eKLR, the Supreme Court extensively discussed the nality of litigation and the dangers of allowing parties to re-open determined applications. The apex court noted that the rule of res judicata is a matter of public policy designed to bring an end to litigation. Once a court of competent jurisdiction has pronounced itself on an issue or a prayer, it cannot be invited by the same parties to re-adjudicate it under the guise of a fresh motion. 24. At prayer (j), the applicant is urging this Court to order the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents to compensate the applicant and David Livingstone Limited t/a Mara River Lodge “for losses and damages suered as a direct result of “contemptuous acts” in the sum of Kshs.295,802,430/- and USD 16, 631,700 being damages/compensation. There are countless decisions by this Court rmly establishing that a court cannot award general or special damages on a miscellaneous or interlocutory application (such as a notice of motion or chamber summons). This Court has repeatedly held that damages are a substantive remedy aimed at restitution or compensation. They can only be pleaded, strictly proved and awarded through a substantive suit (initiated by a plaint or, where legally permitted, a petition), but never through an interlocutory or miscellaneous application. 25. Under the law, damages (especially special damages) must be specically pleaded and strictly proved. An application supported only by an adavit does not constitute a formal pleading for the assessment of damages. Interlocutory motions are typically canvassed via adavit evidence. The assessment of general or special damages requires the Court to hear witnesses, test their credibility under crossexamination and strictly weigh the evidence, a process that cannot happen inside an interlocutory application. This Court in Central Bank of Kenya vs. Trust Bank Limited (In Liquidation) & Another [2016] eKLR observed that interlocutory applications are designed to preserve the status quo or grant ancillary reliefs. A party cannot sneak in a prayer for nal compensatory damages into a notice of motion, as it denies the opposing party the constitutional right to a fair trial, which includes crossexamining the claimant on the injury and losses alleged. But more importantly, by asking this Court to award damages, the applicant has forgotten that this is an appellate court. The applicant is inviting us to address an issue that was not canvassed and determined by the trial court. 26. Equally disturbing is prayer (i) of the application in which the applicant is urging us to stay proceedings in Nakuru BPRT Case Number E008 of 2026 on grounds that it was commenced as a collateral to the orders issued by this Court. This prayer ignores a rudimentary fact, which is, under Kenya's judicial hierarchy, the Court of Appeal does not possess direct supervisory jurisdiction or administrative control over subordinate courts such as the Magistrates' Courts or Tribunals such as the BPRT. (See Odidio Spark Limited vs. Kenya Commercial Bank (Civil Appeal (Application) E422 of 2021) [2022] KECA 426 (KLR) (4 March 2022) (Ruling) Neutral citation: [2022] KECA 426 (KLR)). 27. This Court’s jurisdiction is primarily appellate, dealing with appeals arising from the High Court and courts of equal status. This Court in Odidio Spark Limited vs. Kenya Commercial Bank (Supra) explicitly held that an application inviting it to stay proceedings before a Magistrates' Court is incompetent because the Court of Appeal lacks direct supervisory powers over the trial magistrate’s court. (And by the same parity of reasoning, the BPRT). Under Article 165 (6) of the Constitution, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 8

page 8 of 11

supervisory jurisdiction over subordinate courts is vested exclusively in the High Court and courts of equal status. 28. While a litigant cannot le an application in the Court of Appeal to directly freeze a Magistrate's case or proceedings before the BPRT (as the applicant has done), a stay of the Magistrate's proceedings or the BPRT proceedings can happen indirectly through the following sequence: (a) A party aggrieved by a Magistrate's interlocutory decision or ruling rst les an appeal or a judicial review application at the High Court, the Environment and Land Court or the Employment and Labour Relations Court. (b) The High Court or the courts of equal status either grants or denies a stay of the proceedings. (c) The aggrieved party then appeals that specic decision from the High Court or courts of equal status and if aggrieved, appeals to the Court of Appeal. (c) Under Rule 5 (2) (b) of the Court of Appeal Rules, the Court of Appeal has the power to grant a stay of execution, an injunction or a stay of proceedings pending the determination of the appeal before it. If the underlying matter originates from a Magistrate's le or the BPRT, the Court of Appeal's order staying the High Court's orders or proceedings will eectively freeze or dictate the status of the related trial at the Magistrates' Court or the BPRT. To approach the Court of Appeal, there must already be an active, appealable order or ruling extracted from the High Court or courts of equal status. The underlying appeal before us does not arise from a decision by the ELC arising from a decision by the BPRT. Accordingly, prayer (i) of the application is highly misguided and unavailable from this Court. 29. In prayer (b) (ii) of the application, the applicant is inviting this Court to punish the respondents for allegedly breaching “the status quo order (with penal notice) issued by the ELC Court on 23rd September 2025 in ELC suit Number E006 of 2024.” Strictly speaking, under the law, and in exercise of our jurisdiction, this Court cannot directly entertain an application to punish or commit a person for the contempt of an order issued by the High Court or courts of equal status. 30. A reading Section 5 (1) of the Judicature Act and established judicial precedents, clearly show that each tier of the superior courts possesses independent and distinct jurisdiction to police and protect its own orders. An application to enforce a High Court order through contempt sanctions must be led in the High Court itself (or the respective court of equal status). The Court of Appeal’s role regarding lower-court contempt is strictly appellate rather than original. If a party is aggrieved by the deance of a High Court order (or an order issued by courts of equal status), they cannot bypass the court a quo and le an original motion for committal in the Court of Appeal. The appellate court lacks original jurisdiction to monitor compliance with orders it did not issue. (See Ramadhan Salim vs. Evans M. Maabi t/a Murhy Auctioneers & Another [2016] eKLR). 31. In Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others [2014] KECA 840 (KLR), this Court claried that while it has the same power as the High Court of Justice in England to punish for contempt, its structural jurisdiction is anchored to the preservation of its own dignity and the determination of substantive appeals. It cannot step in as a court of rst instance to execute or penalize breaches of High Court decrees. 32. A reading of prayers (h) and (g) of the application shows that the applicant seeks an order that the Land Registrar be ordered to cancel entries in the register and to restore the applicant into the premises. Our superior courts have consistently held that a trial court or an appellate court when handling an interlocutory application (such as an application for a temporary injunction, stay of proceedings, or conservatory orders), must not make conclusive or nal ndings of fact or law. The rationale behind this rule is to prevent the court from pre-judging or pre-determining the main suit or appeal before parties have had the chance to tender full evidence (if the case is before the trial court), conduct discoveries, and cross-examine witnesses, or argue their appeal, if the case is before an appellate court. To do otherwise would highly prejudice the ultimate trial or appeal. The applicant in the above two https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 9

page 9 of 11

prayers is inviting us to issue nal orders while the substantive appeal is still pending. We decline the invitation to travel this highly prohibited path. As was held by the Supreme Court in Goldenlime International Limited vs. Bluesea Shopping Mall Limited & 3 Others (Motion 21 of 2016) [2021] KESC 2 (KLR) (Civ), interlocutory orders must be within the scope of the application and the law, and nal orders issued at the interlocutory stage are subject to review and discharge. 33. The other important point to note is that at prayers (b) (i) & (ii), (c), (e), (f), (g), (j) and (k), the applicant is seeking orders against the 5th, 6th and 7th contemnors. A reading of the proceedings before the ELC and the record of appeal before us clearly shows that the 5th, 6th and 7th respondents were not parties either before the ELC or this Court. This reality raises a pertinent and a legally sound question whether a person who was not a party to court proceedings can be cited for contempt. The principle governing who can be committed for civil contempt is strictly tied to the doctrines of privity of court proceedings and procedural fairness. This Court has rmly established that an order of the court cannot bind or be enforced via contempt sanctions against a person who was not a party to the suit, had no notice of the proceedings or was not specically targeted by the penal consequences of the order. Because contempt proceedings are quasi-criminal in nature, the rules of natural justice demand strict compliance with identity and service. 34. This Court in Central Bank of Kenya vs. Julius Nkonge Nkabu (Civil Appeal 81 of 2000) [2002] KECA 311 (KLR) (14 February 2002) examined the boundaries of enforcing mandatory and interlocutory orders against entities that were structurally distant or not properly enjoined as principal parties to the specic obligations of the suit. The Court established that the grave consequences of contempt including the loss of liberty or property cannot be casually visited upon a person unless the order explicitly, clearly and unambiguously required that specic person to act or abstain from acting. An order cannot create a compliance obligation out of thin air for a non-party; if the underlying jurisdiction or party enjoinder is defective, a purported breach cannot attract criminal or contempt sanctions. (See Rose Detho vs. Ratillal Automobiles Limited & Others [2018] KECA 50 (KLR)). 35. This Court in Butt & Another vs. Contemnor (Civil Appeal Application 116 of 2021) [2023] KECA 867, a recent and direct evaluation of non-parties being dragged into contempt loops, dealt with an appeal where an individual's name appeared for the rst time in a nal judgment rather than the initial pleadings. The Court protected the non-party from being held in contempt of court. It observed that where an individual was not a party to the underlying dispute or the specic high court motion, they could not be imputed with the intent to obstruct or disobey an execution process. We have said more than enough to demonstrate that the invitation to this Court to nd the 5th, 6th and 7th respondents guilty of contempt is bound to fail for the simple reason that they were not parties before the ELC or this Court. 36. Equally fatal to the applicant’s application is the fact that even though the status quo order was issued on 14th January 2026, the applicant’s plea for contempt, as highlighted in paragraph 4 of this ruling, is premised on instances which allegedly occurred on 24th September 2025, 1st July 2024, 29th November 2025, 22nd September 2025, 24th September 2025, 2nd December 2025, 22nd December 2025, 1st April 2024, 29th November 2025 (See prayers (d) & (h) of the application). Because civil contempt is quasicriminal in nature, a fundamental prerequisite is mens rea (the intent to defy the law) and the existence of a lawful, unambiguous order at the time of the alleged violation. Kenyan appellate and superior courts have routinely thrown out contempt applications where the factual subversion or "disobedient" act was completed prior to the order's existence, as the law does not recognize retrospective or ex-post facto contempt. (See Shimmers Plaza Limited vs. National Bank of Kenya Limited [2015] eKLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 10

page 10 of 11

37. The applicant also claims that on 14th January 2026, the same day this Court issued the status quo order, the 6th respondent caused or procured the 7th respondent to be appointed as sole Manager of the property. We have already held that these two were not parties to the cases. We say no more. Even if they were, the order is alleged to have been issued the same day the appointment took place. The applicant has not established that the contempt status quo order stopped the appointment in question. A court order is not elastic. It must be specic. There is nothing to show the “status quo” order froze his appointment. 38. Lastly, we will now address the question whether the applicant has established a case for this Court to nd the 1st, 2nd, 3rd, and 4th respondents guilty of contempt. These were the parties before this Court when the status quo order was issued. As alluded to earlier, the applicant’s complaints relating to the alleged breach of the status quo order is premised on actions predating the issuance of the order in question. A court cannot legally or logically return a verdict of guilty of contempt of court if the specic actions or omissions cited to prove the contempt happened before the court order was actually made. To convict someone of contempt, the Court must nd that they deliberately chose to violate an existing legal boundary. A person cannot possess the necessary guilty mind (mens rea) or intent to defy a judicial command if that command had not yet been issued at the time they acted. 39. Courts universally reject the concept of retroactive or ex-post facto contempt. The law expects parties to align their conduct with the orders currently active on the record, not to guess what commands a judge might hand down in the future. For civil contempt to succeed, there must be a valid, clear and unambiguous order explicitly prohibiting or mandating a specic action. If the event predates the order, there was simply no lawful barrier in place to be breached at that specic hour. (See Rose Detho vs. Ratillal Automobiles Limited & Others [2018] KECA 50 (KLR). On this ground alone, the applicant’s invitation to this Court to nd that the 1st, 2nd, 3rd and 4th respondents guilty of contempt stands on quick sand and it is bound to fail. 40. Having concluded as herein above, it will serve no utilitarian purpose for us to determine whether the elements of contempt were proved because as stated above, the instances cited by the applicant predate the order and the contemnors could not violate an order that did not exist at the material time. Accordingly, the application dated 23rd June 2026 is devoid of merits and it is hereby dismissed with costs to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents. DATED AND DELIVERED AT NAKURU THIS 25TH DAY OF SEPTEMBER, 2026. J. MATIVO .................. JUDGE OF APPEAL MURUNGI B. KAIRARIA............ JUDGE OF APPEAL AHMED ISSACK ................... JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25 11

page 11 of 11