Kiarie

v. 2. That the costs of this application be in the cause. The application is premised on the grounds appearing on its face together with the supporting adavit of Jane Mumbi Kiarie, sworn on even date. The Applicant’s Case 3. The Applicant averred that on 28th September 2023, this court issued a temporary injunction restraining the Defendants, their agents, servants, or anyone acting under their instructions or authority from registering the conveyance of Plot No. T1XXXX/15XXXX6 and 13XXXX/158XXXX, or from taking occupation, entering, remaining on, trespassing, or continuing with any further dealings with the property, pending the hearing and determination of this suit. 4. She further averred that their advocate discovered that the suit properties had been used as security to obtain a loan from My Credit Ltd after he was served with the 1st Defendant’s documents. She also mentioned that the properties were charged for Kshs 1,500,000/= each without her knowledge or consent. 5. The Applicant argued that the 1st Defendant deliberately violated the terms of the order, which have neither been varied nor set aside. 6. She further argued that disobeying the court order undermines the court's dignity and warrants punishment for the 1st Defendant. 7. She averred that the 1st Respondent was aware of the terms of the order dated 28th September 2023, as it was issued in her Counsel's presence. 8. She argued that My Credit Ltd is a necessary party to these proceedings and therefore should be joined. 9. She further asserted that contemnors’ actions are in blatant disregard of the court’s order and should be dealt with the full force of the law. The 1st Respondents’ Case 10. The 1st Respondent opposed the application through her replying adavit, sworn on 4th February 2025. 11. She asserted that the application is incompetent and an abuse of the court process, and ought to be dismissed with costs. 12. She averred that the process of charging the suit properties started before the instant was led. She asserted that she was not in contempt of the court order as the charge was registered on 25th September 2023, whereas the ruling was delivered on 28th September 2023. 13. She further asserted that she is the registered owner of the suit property and denied receiving a copy of the court order. She also argued that this court lacks the jurisdiction to determine the validity of the charge because the matter is of a commercial nature, and therefore, a declaration cannot be issued. 14. She denied the allegations that she was in contempt of court orders and maintained that the registration of the charge was lawful because it was done within her rights as the registered owner of the suit property. 15. She claried that she has not entered the land since being restrained by the court, and she even halted the ongoing construction in compliance with the court order. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18651/eng@2025-09-30 2

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16. She further asserted that the proposed joinder is unnecessary because it will not assist the court in resolving the issues before it. 17. The deponent asserts that the 2nd Respondent and its directors are law-abiding citizens who would never disobey court orders. 18. In conclusion, the 1st Respondent urged the court to dismiss the application with costs. 19. The application was canvassed by way of written submissions. The Applicant’s Submissions 20. The Applicant led his submissions dated 8th March 2025. 21. On behalf of the Applicant, Counsel submitted that the only issue for determination is whether the Respondents are in contempt of the court orders issued on 28th September, 2023. 22. Counsel submitted that the Respondents were aware of the court orders and actively attempted to oppose their extension. Counsel further submitted that none of the Defendants denied knowledge of the court orders. Counsel asserted that the Defendants intentionally disobeyed the court order and should face appropriate sanctions. The 2nd Defendant’s Submissions 23. The 2nd Defendant led its submissions dated 14th March 2025. 24. On behalf of the 2nd Respondent, Counsel outlined the following issues for the court’s determination:- 25. a. Whether the Applicant has met the threshold for contempt of court. b. When can a party be enjoined in the proceedings? c. What orders should the court grant in the circumstances? Counsel described contempt of court as an act of despising or defying the authority of a court, which impairs the eective administration of justice. Counsel also argued that, to establish civil contempt, the following elements must be demonstrated:a) The terms of the order must be unambiguous 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 d) the Defendant’s conduct was deliberate. 26. Counsel relied on the contents of the replying adavit to argue that the Applicant has not demonstrated that the 1st Respondent is in contempt of the court order. It was submitted that the Applicant has not met the threshold required in contempt proceedings. 27. Counsel argued that the terms of the order allegedly breached by the 1st Defendant are strongly contested. It was also argued that the burden of proof lies with the Applicant to demonstrate that the 2nd Defendant wilfully disobeyed the court order. To buttress this point, reliance was placed on the case of Nile Track Kenya Ltd v Civicon Group Limited and the case of Mutitika v Baharini Frm Ltd (1985) KECA 60 (KLR). According to Counsel, the Applicant has not met the required standard of proof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18651/eng@2025-09-30 3

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28. Regarding the issue of joinder, Counsel submitted that the inclusion of My Credit Ltd would not assist the court in resolving the issues in this case. 29. Counsel relied on the case of Republic v Attorney General & another Ex parte Mike Maina Kamau (2020) KEHC 10013 (KLR) to submit on the conditions that must be met in contempt of court proceedings. Analysis and Determination 30. 31. Having considered the application, the respective adavits, and the rival submissions, the following issues fall for determination:a) Whether the 1st Respondent is in contempt of the order issued on 28th September 2023? b) Whether the application for joinder is merited? The Black's Law Dictionary, 9th Edition, denes contempt of court as follows:“ conduct that dees the authority or dignity of the court. Because such conduct interferes with the administration of justice, it is punishable usually by ne or imprisonment.” Section 5 of the Judicature Act provides that: 32. 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 Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts. 2. An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court. In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another (2005) eKLR, the court observed as follows:“ It is essential for the maintenance of the Rule of Law and order that the authority and 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 or in respect to whom an order is made by the 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 aected by an order believes it to be irregular or void.” 33. The law applicable to the present application is Order 40 Rule 3(1) of the Civil Procedure Rules, which states that: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/2025/18651/eng@2025-09-30 4

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34. 35. The High Court of South Africa in the case of Carla Burchell v Barry Grant Burchell, Eastern Cape Division, Case No 364 of 2005, held that to succeed in civil contempt proceedings, an Applicant must prove:i. The terms of the order ii. Knowledge of these terms by the respondent iii. Failure by the respondents to comply with the terms of the order. In the case of Samuel M.N. Mweru & Others v National Land Commission & 2 Others (2020) e KLR, the court set out the elements to be proved in an application for contempt of court as follows:“ 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 knowledge. c. The defendant has acted in breach of the terms of the order and d. The defendant’s conduct was deliberate”. 36. The rst issue for determination is whether the terms of the order were clear. 37. The order at the center of this application was issued on 28th September 2023, pursuant to the application dated 27/03/2023. The terms of the order were as follows:a) That an interim injunction be and is hereby issued restraining the 1st and 2nd Defendants, their agents and/or servants or any other person under their instructions, consent, authority and control from causing registration of conveyance of Plot No T 15BB and 718B now renamed L.R No 13XXXX/15XXXX and 13XXXX/158XXXX or taking occupation of whichever nature. b) That an order of injunction be and is hereby issued restraining the 1st and 2nd Defendants, their agents, and/or servants or any other person under their instructions, consent, authority and control from causing registration of conveyance of Plot No T 15XXXX and T 1XXXXnow renamed L.R No 13XXXX/15XXXX and 13XXXX/158XXXX or taking occupation of whichever nature pending inter parte hearing of the suit. c) The cost of the application be in the cause. 38. The order clearly states that the injunction was granted pending the hearing and determination of the suit. 39. To this end, I nd that the terms of the order were clear and binding on the Respondents. 40. The next issue to determine is whether the 1st Respondent was properly served or duly notied. The Applicant argued that the 1st Respondent was aware of the order because the ruling was delivered in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18651/eng@2025-09-30 5

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her Advocate’s presence. Conversely, the 1st Respondent asserted that she was not aware of the order because she had not been served personally. 41. The record shows that on 28th September 2023, the ruling was delivered in the presence of Mr. Kamau, Counsel for the 1st Respondent. The 1st Respondent conrmed that she had ceased construction on the suit property in accordance with the order. 42. Based on the foregoing, I am convinced that the 1st Respondent was aware of the terms of the order. 43. Regarding whether the 1st Respondent deliberately breached the court order, the Applicant must prove her case beyond a balance of probabilities. This is because contempt of court is in the nature of criminal proceedings, and the liberty of the subject is usually at stake. To succeed, the Applicant must prove wilful and deliberate disobedience of the court order as outlined in the case of Gatharia K. Mutikika v Baharini Farm Ltd (1985) KLR, where the court held that:“ A contempt of court is an oence of a criminal nature. A man may be sent to prison. It must be proved satisfactorily…..It must be higher than proof on a balance of probabilities, almost but not exactly beyond a reasonable doubt. The standard of proof beyond a reasonable doubt ought to be left where it belongs, to wit, criminal cases. It is not safe to extend it to oences which can be said to be quasi-criminal nature.” 44. In the case of Peter K. Yego & Others vs Pauline Wekesa Kode ACC No. 194 of 2014, the court held that:“ It must be proved that one had actually disobeyed the court order before being cited for contempt.” 45. The Applicant must prove beyond a balance of probabilities that the 1st Respondent charged the suit properties while the order was in place. A careful examination of the order dated 28th September, 2023, shows that the Respondents were prohibited from registering the conveyance or occupying the suit property. 46. The Applicant produced copies of the titles to show that the suit properties were charged on 25th September 2023. The record shows that on 14th June 2023, the court extended the interim orders issued on 30th March 2023, granting prayer No. 2 of the application dated 27th March 2023 until the ruling date. Based on the foregoing, it is clear that the charge was registered during the pendency of the order. 47. The Respondent conrmed that she had ceased all construction activities in accordance with the court order. However, she still proceeded to charge the suit properties despite the court order. From the foregoing, it is crystal clear that the Applicant has demonstrated that the 1st Respondent deliberately disobeyed the Court order dated 28th September 2023. 48. Regarding the second issue, the law governing the joinder of parties is grounded on Order 1 Rule 10(2) of the Civil Procedure Rules, which provides that; “ The Court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plainti or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plainti or Defendant or whose presence before the court may be necessary in order to enable the court to eectually and completely to adjudicate upon or settle all questions involved in the suit, be added.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18651/eng@2025-09-30 6

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49. The Black’s Law Dictionary (8th Edition) page 3548 denes an Interested Party as follows; “ a party who has a recognizable stake and therefore a standing in the matter.” 50. In the case of Trusted Society of Human Rights Alliance Vs Mumo Matemo & 5 Others (2015) eKLR, the Court held that; “ An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be aected by the decision of the court when it is made either way. Such a person feels that his interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her cause.” 51. The Supreme Court of Kenya in the case of Francis Karoki Muruatetu & Another Vs Republic & 5 Others (2010)eKLR outlined the key elements for consideration in an application for joinder of an Interested Party as follows:a. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identiable and must be proximate enough to stand apart from anything that is merely peripheral. b. The prejudice to be suered by the intended interested party in case of nonjoinder must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote. c. Lastly, a party must, in its participation, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court. 52. Based on the material on record, this court is satised that the Applicant has not demonstrated that My Credit Ltd has an identiable stake in the proceedings. Its joinder will not assist the court in eectively determining the dispute between the parties herein. 53. The upshot of the foregoing is that the application dated 28th November 2024 partially succeeds in the following terms:a) The 1st Respondent is hereby found guilty of contempt of the court order dated 28th September 2023. b) The Applicant is awarded costs. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF SEPTEMBER, 2025. T. MURIGI JUDGE In the presence of; Gakaria for the Applicant Ahmed – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18651/eng@2025-09-30 7

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