International Angel Kindergaten Limited & another v Patel & 3 others (Environment and Land Case E495 of 2024) [2025] KEELC 6411 (KLR)

3. d. That an order for temporary injunction is hereby issued against the 1st, 2nd and 3rd Respondents restraining the 1st, 2nd and 3rd Respondents either by themselves, their agents, representatives and assigns from entering, remaining upon or interfering with the 1st and 2nd Applicant’s quiet possession of the parcel known as LR. No 2255/2 situated in Karen, until 16th December, 2024 when the Application will be heard inter partes. e. That an order is hereby issued to the Oficer Commanding Police Division Lang’ata Sub County to execute order in Clause (4) hereinabove by deploying oficers to protect the property known as LR. No. 2255/2 situated in Karen, until 16th December, 2024 when the Application will be heard inter partes. These orders were again extended on the 16th December 2024. In the present application the applicants contend that the 1st and 3rd Respondents denied them access to the suit property. They have also claimed that the Police Division failed to provide security. The applicants therefore seek the following orders; a. Spent b. That the Honourable Court be pleased to find the find the Respondents/Contemnors herein in contempt of the Court Orders issued on 2nd of December 2024 and extended on 16th December 2024 c. That the Honourable Court be pleased to punish and fine the 1st, 2nd, and 3rd Contemnor by committing Aviind Kanii Patel, Peter Anadala and Samuel Thimba to Civil Jail for a period not exceeding 6 months of a fine of (Kshs. 2,000,000.00/= each) or both for contempt of court orders issued on 2nd December 2024. d. That the Honourable Court be pleased to issue a Notice to Show Cause to the 4th Respondent’s Police Commander at the Police Division-Langata Sub- County namely Ms. Monica Kimani SSP why she should not be committed to civil jail for a period of six months for being in contempt of court orders. e. That the Honourable Court be pleased to issue any further orders it deems just and equitable f. That the costs of this application be provided for. 4. The 1st Respondent filled a replying afidavit dated 24th February 2025 in respect of the application. He deponed that he had not disobeyed the orders of the court as the said orders did not indicate that the applicants should not pay rent as the applicants had defaulted in payment of rent. He averred that by failing to pay rent the Applicants were in breach of the lease agreement. 5. The 1st Respondent further denied restricting the applicants access into the suit property alleging that the allegations of contempt were unfounded. 6. The applicants counsel filed submissions in support of the application. Counsel submitted that the orders of 2nd December 2024 extended on the 16th December 2024 were very clear and that the respondents were fully aware of the orders having had legal representation. That the failure of the 1st ,2nd and 3rd respondents to allow access to the suit property was in contravention of the orders that were injunctive in nature. 7. The Respondents counsel filed submissions dated 28th April 2025 where the argument was that the applicant had not produced conclusive proof to meet the essential elements in a contempt application relying on the case of Samuel M.N Mweru & others vs National Land Commission & 2 others (2020) eKLR. It was further submitted that the Respondents had not denied access to the applicants nor had https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6411/eng@2025-07-02 2

page 2 of 4

it been proved they had trespassed on the suit property which were essential in proving contempt of the orders issued 2nd December 2024 extended on the 16th December 2024. It was the Respondents contention that the applicants had vacated the suit premises on their own volition without informing the Respondents. It was further submitted that the Applicants had rent arrears. 8. The sole issue for determination is therefore Whether the Respondents/contemnors are in contempt of the court orders of the 2nd December 2024 and extended on 16th December 2024. 9. Section 5(1) of the Judicature Act grants the High Court and the Court of Appeal the power to punish for contempt. It provides: (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 subordinate courts. Justice Mativo restated the test for establishing contempt in his decision in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR where he stated “ It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order.” 11. In this matter the existence of the court order issued on 2nd December 2024 and extended on the 16th December 2024 is not in dispute. There is no issue of service of the said court order or lack of awareness of its existence. The only issue for determination is whether the Respondents deliberately disobeyed the terms of the order. 12. Section 107 of the Evidence Act places the burden of proof on whoever alleges. In the case of Regina Butt -vs- Haroon Butt and another [2016] eKLR Thande J faced with a similar scenario made the following observations regarding standard of proof. “ The standard of proof in contempt proceedings is well established. The 1st and 2nd Respondents in their submissions in opposition to the Application cited the case of Mutitika vs Baharini Farm Limited [1985] KLR 229, 234. In that case, the Court of Appeal disagreed with the distinguished Lord Denning’s position in, Re Breamblevale Ltd [1969] 3 All ER 1062, the court posited; “ in our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt............... the standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an ofience which can be said to be quasi criminal in nature," 13. The Applicants have claimed they were denied access into the suit property. The afidavit in support of the application is sworn by Stuart Garvey who avers that their access into the suit property was https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6411/eng@2025-07-02 3

page 3 of 4

restricted by the 2nd and 3rd Respondent on the instructions of the 1st Respondent. He also avers that the 4th Respondent delayed in ofiering security as they alleged that a security committee needed to sit. 14. The orders given by this court were to the efiect that the 1st,2nd and 3rd Respondents were restrained from entering, remaining upon or interfering with the Applicants quiet possession. Stuart Garvey depones that their access to the property was restricted by the Respondents. He attaches to his afidavit SMS messages between him and the 1st Respondent that make it clear that at least the 1st Respondent was aware of the orders and did not take the issue of contempt seriously. The 1st Respondent in one message defiantly states that even if he is in contempt, the applicant’s director should speak to his lawyer. 15. The evidence as captured in the photos, shows that there was restriction of access on the suit property despite the order restraining the respondents from restricting the quiet possession of the applicants. As stated, the 1st Respondent was fully aware of the orders. He has not controverted the statement that restriction of entry of the applicant’s employees by the guard was on his instruction. 16. In Gatharia K. Mutikika vs Baharini Farm Ltd (1985) KLR 227 the court explained the standard of proof for civil contempt, holding that “ In, Re Breamblevale Ltd [1969] 3 All ER 1062, Lord Denning MR. (as he then was), at page 1063, had this to say,‘A contempt of court is an ofience of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time– honoured phrase, it must be proved beyond reasonable doubt." 17. On the whole I am satisfied that the 1st Respondent knew of the orders and deliberately decided not to obey them. The fact that the court after hearing the application did not allow the injunctive orders which had by then been overtaken by events does not take away the responsibility the 1st Respondent had to obey the orders even though he claimed he was owed rent. His disobedience is particularly serious considering that the Plaintifi was a school and his actions had the potential of interfering with right to education of young children. Court decisions must be obeyed by all persons. Only then can we uphold the Rule of Law. As for the 2nd and 3rd Respondent, there was no confirmation of personal knowledge of the clear terms of the order. Regarding the 4th Respondent, although there was inexcusable delay in implementing the court orders, it was the evidence of the Applicant through the further afidavit of Stuart Gravey that the police eventually assisted the Applicants move out of the school. 18. In the end, I find that the application is merited and that the 1st Respondent was in contempt of the orders issued on 2nd December 2024 and extended on 16th December 2024. A Notice To Show Cause is thus issued to the 1st Respondent to show cause why he should not be committed to civil jail. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 2ND OF JULY, 2025. JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Ms Anyango for Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6411/eng@2025-07-02 4

page 4 of 4