Mbithi v Kitonga & 3 others (Environment and Land Case 9A of 2023) [2025] KEELC 6965 (KLR)

2. The application is based on the grounds stated on the face of the application and supported by the annexed afidavit sworn by the applicants on May 5, 2025. 3. The application is opposed; the plaintifi filed a replying afidavit sworn on May 15, 2025, with the 2nd to 4th respondents submitting grounds of opposition dated July 8, 2025. 4. The applicant contends that this court issued interim orders on July 2, 2023, against all the defendants, stopping them from issuing a certificate of lease for the property or dealing in any manner with plot No. 115 Mariakani Town pending the hearing and determination of the application dated July 17, 2023. 5. Subsequently, the court referred this case for mediation, which failed allegedly because the plaintifi and the 2nd, 3rd, and 4th defendants have, in direct violation of the court orders, proceeded to deal with the said property. A survey plan and a title deed have been issued to the plaintifi. 6. The applicant argues that through these actions, the plaintifi and the 2nd, 3rd, and 4th defendants are now in contempt of the court’s injunctive orders. Unless the plaintifi and the 2nd, 3rd, and 4th defendants’ property is seized or they are detained in jail for six months — or both — the contempt will continue to harm the 1st defendant. It is the responsibility of the plaintifi and the 2nd, 3rd, and 4th defendants to rectify the contempt by returning the property to its state before the issuance of the injunction orders, as their actions have caused damage to the 1st defendant. The 1st defendant is likely to sufier irreparable loss and damage if this disobedience continues. Therefore, the orders being requested must be granted to achieve justice. 7. The plaintifi argues that no such orders were served for compliance and that nothing prevented him from obtaining his lease from the 1st to 4th defendants; therefore, the application is misconceived and should be dismissed. 8. On their part, and through the grounds in opposition, the 2nd through the 4th defendants claim that the applicant has not specified how the contempt was committed by the 2nd to 4th defendants, as there is no proof of any titles or leases being issued. They also state that there is no evidence that the order dated July 20, 2023, was ever served upon the 2nd and 3rd defendants, as the only stamp shown confirms service only upon the 3rd defendant, who does not issue leases, so the 3rd defendant could not have been in contempt of the court order. 9. The main issue I present for this court's decision is whether contempt has been proven according to the required standards, and who should bear the costs of the application. 10. I acknowledge receipt of written submissions from learned counsels - Ms. Osino for the 1st defendant/ applicant and Mr. Nzavi for the plaintifi/respondent, for which I am grateful, as they greatly contributed to resolving the issues raised in the application. 11. Ms. Osino argues that it is undisputed that the orders were known to the plaintifi and the 2nd to 4th defendants. Additionally, the orders were served, as evidenced by the order attached to the 1st defendant’s application, which clearly shows service on the 4th defendant through a stamp on the document. The order attached to the plaintifi’s replying afidavit, sworn by the plaintifi, also clearly demonstrates service on the 3rd defendant and bears the 4th defendant’s stamp. In paragraph 4 of the replying afidavit, the plaintifi confirms that he was communicating with the 2nd defendant after the order was issued on July 18, 2023. He attached as an annexure, AKM2, a letter dated August 31, 2023, from the 2nd defendant, stopping the processing of the 1st defendant’s titles and instructing the 3rd defendant to advise the 1st defendant to carry out subdivision through a licensed surveyor. However, the plaintifi proceeded with survey work despite being aware that the court had issued orders prohibiting any dealings with the land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6965/eng@2025-10-09 2

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12. As stated, the plaintifi denies receiving the orders and afirms that nothing is preventing the plaintifi from obtaining the lease from the 2nd to the 4th defendants. 13. While the 1st to 4th respondents argue that there was no proper service on them and that only the stamp of the 4th defendant is acknowledged. 14. The elements that have to be proved for contempt to attach are as enunciated in Samuel M.N. Mweru & Others v National Land Commission and 2 Others (2020) eKLR: “ 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. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate. 15. Superimposing the above test on this matter, it is clear that all parties were aware of the orders issued on July 2, 2023, by this court (Mogeni J.). 16. Parties embarked on the Court-Annexed mediation process well after the orders had been issued. 17. According to the record, the parties were scheduled to conduct a joint survey on December 5th, 2024, to resolve the case. However, the mediator noted that each party had filed or possessed survey maps with registration of new titles instead. 18. That at this point, although the plaintifi and the 2nd to 3rd defendant allege non-service of the orders, they were aware of the orders in place. 19. At this point, I believe it will be relevant to issue a Notice to Show Cause to the 1st to 4th defendants, explaining their reasons and why they proceeded with registrations despite being aware that the orders were in place. 20. The application succeeds in issuing NTSC to the 2nd to 4th defendants to explain their roles in registering the suit properties, while court orders, which stated the halt of the exercise, were in efiect before any further directions from this court. 21. Costs in the cause. DATED, SIGNED, AND DELIVERED VIRTUALLY AT MALINDI ON THIS 9TH DAY OF OCTOBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6965/eng@2025-10-09 3

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E. K. MAKORI JUDGE In the presence of: Mr.Nzavi for the Plaintifi Ms. Osino for the 1st Defendant Mr Ojwang for the 2nd to 4th Defendants. Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6965/eng@2025-10-09 4

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