Nyamohanga v Mosama (Enviromental and Land Originating Summons E019 of 2021) [2025] KEELC 6775 (KLR)

interlocutory application. He further asserted that he has not been physically capable of carrying out the alleged acts, and that no proof of personal knowledge or service of the alleged order has been shown. Issues for determination 4. After considering the afidavits, the written submissions dated 17th January 2024 by the plaintifi Applicant and by the Defendant respondent dated 24th January 2024 and authorities cited by the parties, I find the following issues determinative: a. Whether the Respondent is in contempt of the Court orders dated 12th May 2021. b. Whether the Applicant is entitled to interim compensation in this interlocutory application. c. What orders (if any) should be made on costs. Analysis and Determination 4. The term “contempt” is defined in Brian A Garner in Black’s Law Dictionary (Eleventh Edition) Thompson Reuters, 2019 defines contempt of court as: “ Contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.” 4. In the case of Hadkinson -v- Hadkinson(1952) 2 All ER 567, it was held that: “ It is plain and unqualified obligation of every person against or in respect of, who an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person afiected by an order believes it to be irregular or even void.” 4. I agree with the holding in the above-mentioned decision that every court order should to be obeyed by the person to whom it is directed. 5. The power to punish for contempt of Court, is provided for under the Section 5 of the Judicature Act, Chapter 8 of the Laws of Kenya, and a number of other legislations. Numerous case law exist on these powers. 4. This court is given power to punish for the ofience of contempt of Court under Section 29 of the Environment and Land Court Act which stipulates: “ .... 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.” 4. Order 40 rule 3 of the Civil Procedure Rules provides for consequence of breach of an order of injunction and states: “ In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6775/eng@2025-07-21 2

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4. Dealing with the question of contempt in Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J (as he then was), underscored the importance of obeying court orders, stating: “ It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person afiected by the order believes it to be irregular or void.” 4. Having laid the basis on which courts in Kenya can punish for contempt of court orders, I now turn to address the issues raised in the Application at hand. 5. The Applicant’s case is premised on the allegation that the Respondent disobeyed the orders of this Court issued on 12th May 2021, which directed that the status quo be maintained pending inter partes hearing. The Applicant contends that on 19th November 2023, the Respondent and/or his agents invaded the suit property, destroyed crops and trees in blatant disregard of the Court’s directive. 4. The Respondent has denied these allegations and averred that he was neither served with nor aware of the said order. He further denies personal involvement in the acts complained of and contends that the Applicant is attempting to use contempt proceedings to litigate substantive issues of ownership and damages. 5. Courts have set out established principles of law in an application for civil contempt and in the case of Samuel M N Mweru & Others v National Land Commission & 2 others [2020] eKLR the held that: “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. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.” 6. On the first element, the terms of the order dated 12th May 2021 were clear: The status quo be obtaining as at 3rd May 2021 to be maintained the clarity of the order itself is not in dispute. 7. The second and crucial requirement is knowledge of the order. The Applicant placed before the Court two documents: annexure JCN-1, being the order issued on 12th May 2021, and annexure JCN-2, which is a received copy of an order dated 16th December 2021. However, the record shows that this second order was only received on 20th January 2023 well after the alleged acts of 19th November 2023. The order relied upon in these proceedings is that made on 12th May 2021. Critically, nothing on record shows that this order was ever served upon the Respondent. 8. This gap creates a material doubt as to whether the order was properly extracted, served, or otherwise brought to the attention of the Respondent prior to the alleged acts of 19th November 2023. It is a wellsettled principle that contempt requires strict proof of service or evidence that the Respondent had personal knowledge of the order said to have been disobeyed. The Court cannot proceed on conjecture or assumption, particularly where the liberty of a party is in question. [2015] eKLR, the Court of Appeal emphasized that personal knowledge of the order, either through service or otherwise, must be clearly established before a person can be punished for contempt. In the present case, there is no https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6775/eng@2025-07-21 3

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afidavit of service confirming that the order of 12th May 2021 was served upon the Respondent, nor is there cogent evidence showing that he otherwise became aware of its terms. In Shimmers Plaza Limited v National Bank of Kenya Limited 9. The Applicant relies heavily on allegations that the Respondent’s agents destroyed crops and trees on the suit land. While these are serious allegations, the Court is guided by the principle that contempt proceedings are quasi-criminal in nature and demand a higher standard of proof than that applicable in ordinary civil claims. As stated in Gatharia K Mutikika v Baharini Farm Limited [1985] KLR 227, the standard of proof in contempt is “almost but not exactly, beyond reasonable doubt.” The material placed before Court falls short of that elevated standard. 10. The inconsistency in the record as to when and how the order was extracted and received, coupled with the absence of an afidavit of service or other credible evidence of personal knowledge by the Respondent, is fatal to the application. In contempt proceedings, strict proof of knowledge of the order is mandatory. Without resolving this inconsistency in the Applicant’s favour, the Court cannot safely conclude that the Respondent was ever made aware of the orders of 12th May 2021. It follows that the alleged acts of 19th November 2023, even if proved, cannot ground a finding of willful disobedience. Conclusion & Final Orders 4. I therefore find that the Application does not meet the threshold set out for a finding of contempt of court. The Applicant has not placed before this Court evidence to show that the order made on 12th May 2021 was served upon, or was within the knowledge of, the Respondent, nor that he willfully disobeyed its terms. 5. Consequently, the Notice of Motion dated 4th December 2023 is dismissed for want of merit. 6. Each party shall bear its own costs of the application. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 21ST DAY OF JULY, 2025. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Aeleon Abisa for the Plaintifi N/A for the Defendants Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6775/eng@2025-07-21 4

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