Kigwe Limited v Ngugi & 2 others

c. Costs of the suit and interests. 3. Subsequently, the 2nd Defendant led an Application dated 16th October 2021 for eviction orders against the Respondents in the execution of the Judgment. This application was allowed on the 25th November 2021. The eviction order was carried out under supervision of the police. 4. Notwithstanding that the applicant is now in possession of the suit property it is the contention of the applicant company that its members have been unable to enjoy quiet possession of the suit property. They lay the blame for their woes at the feet of the director of the Plainti Respondent, one David Waiganjo Kigwe. 5. The applicant has thus led this application seeking orders of contempt against David Waiganjo Kigwe; a. That this application be certied as urgent and be heard exparte and service hereof be dispensed in the rst instance. b. That this court do issue eviction orders as against the Respondents by themselves or through its authorized or unauthorized, disclosed or undisclosed, director(s), ocer(s) agent(s) or other representative(s) or any other person(s). c. That vacant possession of the suit property be delivered by the Respondents either by themselves or through its authorized of unauthorized, disclosed or undisclosed, director(s), ocer(s), agents(s) or other representative(s) or any other person(s) in furtherance of the court orders given on the 22nd of July 2021. d. That the said orders be supervised by the Ocer Commanding station-Juja police station to ensure law and order e. That costs of the application in the cause. B. The Applicants case 6. The applicant asserts that in spite of holding a decree in their favour the Respondent through its Director, agents and members of the Directors family have obstructed the execution of the court orders herein. The complaints against David Kigwe is that he and his family members have hired goons to attack lawful owners of the suit property and have led multiple suits with an intention of defeating the Judgement and further that they have harvested stones from the suit property. C. The Respondents case 7. The Respondent has led a Replying Adavit in which he denies the averments by the Applicant in toto. He argues that he is not responsible for the family members who have led the suits. And states that he did report the forgery of his signature to the police for investigations. He insists he cannot be faulted for this action as he had a genuine complaint. D. The Law 8. Contempt of Court is provided for under Section 5 of the Judicature Act. Section 5 thus provides as follows: “ (1). 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18540/eng@2025-11-27 2

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justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts.” 9. 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 oence, and shall, on conviction, be liable to a ne not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 10. Justice Mativo ( as he then was) in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, 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 de.’[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 de (though unreasonableness could evidence lack of good faith).[42] 39. These requirements – that is the refusal to obey should be both willful and mala des, and that unreasonable non-compliance, provided it is bona de, does not constitute contempt – accord with the broader denition of the crime, of which non-compliance with civil orders is a manifestation. They show that the oence is committed not by mere disregard of a court order, 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 justied or proper is incompatible with that intent.” 11. Thus an applicant for a motion of contempt of Court must knowledge and understanding of the existence and content of orders preventing certain conduct by the alleged contemnors; and two, that such contemnors willfully acted contrary to these express Court instructions. 12. The importance of obedience to Court orders cannot be gainsaid. In the case of 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 rmly with proved contemnors. It is the plain and unqualied 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 aected by the order believes it to be irregular or void. (emphasis) 13. The standard of proof in cases of contempt of court was explained in Mutitika v Baharini Farm Limited [1985] KLR 229, 234 where the Court of Appeal held that, “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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18540/eng@2025-11-27 3

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where it belongs, to wit, in criminal cases. It is not safe to extend it to an oence which can be said to be quasi-criminal in nature.” 14. In the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR the Court extensively discussed the issue of the burden and standard of proof for contempt thus, “ …there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; rst, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.” E. Analysis 15. There is no doubt that the Respondent was aware of the orders of the court herein. Indeed he does not deny knowledge of the order. He is however categorical that he is not responsible for the stated acts as the land in question is family land which other members of the family had an interest in. 16. While the Applicant was able to prove through court proceedings in other courts that there have been other suits led in respect of the suit property, there was no evidence that it was the alleged contemnor herein who led those suits. He cannot be held responsible for the actions of other members of his family. The civil procedure code has provisions that can be used to deal with vexatious litigants who abuse the process of the court. 17. On the serious issue of hooligans who have made the applicants occupation of the suit property dicult, it was averred that the hooligans were hired by the said David Kigwe and his family members. There was however no proof of personal culpability by the Respondent herein. While there may very well be reason to be suspicious of the Respondent, the court nds that it cannot on the basis of suspicion nd that the Respondent is culpable. 18. I therefore nd that the application has not been proved and is dismissed. Each party will bear their own costs for the application. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18540/eng@2025-11-27 4

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