Commercial Bank of Africa Limited & another v Ndonga Limited & 5 others (Environment and Land Case 93 & 1073 of 2016 (Consolidated)) [2025] KEELC 6353 (KLR)

a. Spent b. Spent c. That the honourable court be pleased to cite and punish the Plaintifi/Respondent and the interested party herein for disobeying and disregarding the lawful court orders issued and/or granted on the 28th October 2021 and the existence of which is within the knowledge of the defendant d. Consequent to prayer (3) hereinabove being granted, the honourable court be pleased to issue warrants of arrest to bring the directors of the Plaintifi/Respondent and the directors of the interested party herein before this honourable court for committal to jail for disobedience e. Consequent to prayer 4 hereinabove, the honourable court be pleased to commit the directors of the Plaintifi /Respondent and the directors of the interested party herein to jail for a duration not exceeding six(months) and/or such shorter period as the court may deem fit and expedient and/or impose a substantial fine against the directors f. In the alternative, the court be pleased to grant an order of sequestration to attach the properties of the Plaintifi/Respondent and the interested party herein which properties be sold to defray the damages occasioned by the breach and/or disobedience of the lawful court orders made on the 28thday of October 2021. g. That the court do declare that on the basis of this honourable court’s orders of 28th October 2021 the Plaintifi’s purported statutory power of sale does not exist until the suit is fully heard and determined. h. Costs of the application 2. The applicant contends that the court in its Ruling dated 28th October 2021 dismissed an application to exercise the statutory power of sale. That the court considered that there were two parties claiming that they had a charge over the suit property. The court refused to allow the application. It is the applicants case that the refusal by the court to allow the joint sale amounted to an order restraining the Plaintifi/ Respondent from exercising the statutory power of sale. The 1st Defendant/ Applicant avers that in disregard to these orders the Plaintifi/ Respondent has attempted to dispose of the suit property hence this application. 3. The Plaintifi/Respondent vide a Replying afidavit sworn by Christine Wahome depones that the orders issued on 28th October 2021 were negative orders that were incapable of being enforced or violated and that the ruling basically dismissed the prayers for a joint sale of property but did not diminish the Respondent’s statutory right of sale. She further deponed that there was an earlier ruling on record delivered on the 4th October 2018 in which the court dismissed the applicant’s orders seeking injunctive orders. She deponed that the ruling dated 4th October 2018 was still in force. 4. The court on the 28th October 2024 directed the parties to canvass the application by written submissions. Both parties filed written submissions which the court has duly considered. 5. From these submissions and the prayers sought in the application the court distils the following issues for determination.Whether the Plaintifi/ Respondent is in contempt of the orders issued on 28th October 2021 and if so its Directors be committed to civil jail or an order of sequestration issue to attach its propertiesWhether the court should declare that the Plaintifis purported statutory power of sale does not exist https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6353/eng@2025-06-18 2

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6. Paragraph 33 of the Ruling dated 21st October 2021 indicated “This is a matter that ought to go for full hearing so that all parties can be heard before a final decision is made. I find no merit in this application and the same is dismissed. The cost do abide the outcome of the main suit.” 7. The application which was dismissed was an application dated 15th November 2019 which had sought the following orders; “ a. That Commercial Bank of Africa Limited, the Applicant herein and Diamond Trust Limited, the 2nd Defendant in ELC 93 OF 2016, be allowed to enforce the charges registered or granted in their favour by the 1st Defendant, Ndonga Limited through joint exercise of the statutory power of sale over all that property known as L.R. No. 209/12513 (hereinafter referred to as the suit property)” 8. It is evident that the prayers sought were wide ranging which included exercise of joint statutory power of sale, reconstruction of a register and publication of the sale in a newspaper. The court Ruling dismissed this application. The present application seeks to have the Plaintifi/ Respondent punished for contempt in respect of these orders. 9. Contempt of Court is provided for under Section 5 of the Judicature Act which provides as follows: “ (1). 10. The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts.” Additionally, section 29 of the Environment and Land Court Act provides as follows; “ Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an ofience, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 11. In order to prove Contempt of Court, it must be established that the Court order was valid, that the same was brought to the alleged contemnor’s attention and the alleged contemnor made some deliberate step to breach the same. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the Learned Judge held, “ 38. The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide.’[40] A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. [41] Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).[42] 39. These requirements – that is the refusal to obey should be both willful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the ofience is committed not by mere disregard of a court order, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6353/eng@2025-06-18 3

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but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces.[43] Honest belief that non-compliance is justified or proper is incompatible with that intent.” 12. In the Court of Appeal case of Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others [2018] eKLR the court held as follows: “ It is trite that to commit a person for contempt of court, the court must be satisfied that he has wilfully and deliberately disobeyed a court order that he was aware of…secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in AB & another v R B [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt.” 13. From the foregoing jurisprudence, the court distills the following ingredients for contempt;Knowledge of the order which must be clearWilful disobedience 14. The order must be clear and must be brought to the attention of the contemnor. In the instant case the order dismissed all the prayers sought and directed that the matter was to go for full hearing so as to hear all the parties. In light of the earlier Ruling dismissing the injunctive orders, the courts order can only be interpreted in light of the specific orders that had been sought in the application. It cannot be interpreted to include other issues that were not before the court. 15. The issue of service is critical in proving knowledge of an order more so in a situation, such as this where the liberty of the contemnors is at risk. The applicants have not tendered any evidence to prove service upon the Directors and in any event given that the order was a negative order it would be dificult to find there was willful disobedience. 16. There was also an attempt to have the court issue an injunctive order in this contempt application. This issue had already been addressed in an earlier ruling dated 4th October 2018 and cannot be reopened by this court. I therefore find that the application has no merit and is dismissed with costs to abide the outcome of the main suit. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 18TH OF JUNE, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Mr. Kabaiku for Plaintifi/Respondent Mr Kioko for 1st Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6353/eng@2025-06-18 4

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