CKK Estates [1973] Limited v Attorney General & 6 others; George & another

d. The Application is dated 15/01/2025. 2. From the very onset, it will be noted that, the Petitioner and the 4th and 5th Respondents are the ones who led pleadings in the matter and of course the Proposed Intended Party, Njunu Farmers Cooperative Society Group as neither the 1st, 2nd nor the 3rd Respondents led any documents at all. 3. Suce it to say, the pith and substance of afore mentioned Applications dier in accordance to the party’s interest in the matter which relates to the proprietorship of the suit properties LR No. 134/8 and LR 245/4. 4. Now the rst Application is dated 17/09/2024 led by 4th Respondent seeking the following prayers:- 5. a. Spent. b. That the Honorable Court be pleased to strike out the Petition for being an abuse of the process of the Court. c. That the cost of the suit and the Application be awarded to the 4th Respondent/Applicant. The second Application is dated 31/12/2024 and the prayers in it are as follows:a. Spent. b. Spent. c. Partly overtaken by event on the issue of hearing the Application during vacation. The other prayer is one about Court and the Applicant seeks to have the 4th, 6th and 7th Respondents committed to civil jail for six months to for disobeying the orders made herein on 9th November 2023 requiring them not to interfere with the Petitioner’s enjoyment of LR No. 134/8 and LR No. 245/4 a coee and tea farm or enter into it pending the hearing determination of this Petition. d. That the costs of this Application be in the cause. 6. The third Application is the Notice of Preliminary Objection dated 15/01/2025 by the Petitioner for the reason that the Application oends the conception of interested parties embodied in Trusted Society of Human Rights Alliance versus Mumo Matemu and 5 Others, Supreme Court Petition Number 12 of 2013 (2014) eKLR. The Petitioner also contends that this Court lack jurisdiction to entertain claims based on pre-colonial title to land and that Applicant’s claim to the suit property is a challenge within the meaning of Article 2(3) of the Constitution to the validity or legality of the Constitution in any Court or other state organ in so far as the right to property protected by Article 40 of the Constitution is concerned. 7. The 4th Application is the one dated 15/01/2025 by the Proposed Interested Party Njunu Farmers’ Cooperative Society Group seeking the following prayers: 8. a. Spent. b. That the Honourable Court be pleased to enjoin the Applicant herein in the suit as an Interested Party. c. That costs of this Application be in the cause. The gist of this Application being that the Chairman of the proposed Interested Party claims that the 4th Respondent was a member of the proposed Interested Party which is a Cooperative Society Group. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 2

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That Samuel Karuga Koinange who is the Chairman and member of the Board of Directors deserted the proposed Interested Party’s Farmers’ Cooperative Society Group and formed and or registered the form of CKK Estates without the Applicant’s knowledge or consent or other members. That it has emerged that the 2nd and 3rd Respondents have already prepared for the 4th Respondent purported deed plans which was used to create from the Petitioners property LR No 134/8 purported titles from the Petitioner’s land and the 4th Respondent is using possession of a part of the Petitioner’s LR No. 134/8 which is 242 acres. That the Petitioner has obtained a restraining order against the 4th and 5th Respondent barring them from entering or using the suit property LR 134/8 and LR 245/4 pending the hearing and determination of the Petition. The Applicant here contends to have benecial interest over the said parcels by virtue of his position the Njunu Farmers’ Cooperative Society and also in the Petitioner’s Company. 9. I will deal with all the four Applications in the order of time of ling as follows: a. Notice of Motion Application dated 17/09/2024 b. Notice of Motion Application dated 31/12/2024 c. Notice of Motion Application dated 15/01/2025 d. Notice of Preliminary Objection dated 15/01/2025 10. The Notice of Motion Application dated 17/09/2024 seeks to strike out the Petition dated 20/12/2022. The gist of the Application dated 17/09/2024 is that this Honourable Court do issue orders to strike out with costs the Petition dated 20/12/2022. It is the contention of the Applicant that the Petition led revolves around a dispute relating to ownership of the suit properties namely LR No. 134/8 and LR 245/4. 11. That in support of the claim to ownership of the suit properties the Petitioner has exhibited several documents in support of its alleged claim of the ownership, which according to the Petitioner accrued to them in 1973 after they purchased it. 12. On the other hand, the 4th Respondent has also exhibited a copy of an indenture/title and several ocial searches issued to him to by the 3rd Respondent in support of his claim of proprietorship. 13. Given the two claims it therefore follows that this is a serious unresolved proprietorship dispute between the Petitioner and the 4th Respondent/Applicant. Thus, the Petition is not the appropriate forum to determine a land ownership dispute as this is the case with the instant Petition. The normal way of subjecting a land ownership dispute is a normal suit commenced by way of Plaint. 14. That the Petition does not meet the threshold of a Constitutional Petition and the jurisdiction of the Court has not been involved in the appropriate and prescribed manner. The Application is supported by the Adavit sworn by David Gichia Kinyitta sworn on even date. 15. In support of the Application the Applicant has reiterated the facts in the grounds of the Application that the Petition is about ownership of the suit property which is contested. That the Petitioner seeks several declaratory orders laying claim to the suit property since 1973 and he has attached what he refers to as a purported title for the Petitioner as annexure DG-1. At the same time he has attached copies of indenture/title and searches showing the alleged 4th Respondent’s proprietorship. 16. The 4th Respondent contends that whereas the Petitioner has a right to seek Constitutional redress for violated rights this Petition does not qualify for the threshold of a Constitutional Petition because the violated rights are not particularized and particularly pleaded. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 3

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17. The 4th Respondent avers that the issue of proprietorship of the suit property is contested and that he was forced to le a fresh suit Thika ELC No. E112 of 2024 to enable him raise particular issues of fraud on the proprietorship of the suit properties because he could not plead the same in a Constitutional Petition. Further that the declaratory orders sought in the Petition cannot be granted by way of Petition. 18. That the Petition is thus an exercise in futility, incompetent and an abuse of the legal process of this Honourable Court. 19. This Application is opposed vide a Replying Adavit led by Samuel Karuga Koinange, a shareholder and member of the Board of Directors of the Petitioner sworn on 30/09/2024 and a Further Adavit by the same Samuel Karuga Koinange sworn on 6/02/2025 which lends support to the Adavit led for the Application dated 31/12/2024. It is the contention of the Petitioner that the Applicant in the Application dated 17/09/2024 is keen on scuttling the trial of the Petition and that the said Application is barred by the doctrine of res judicata and functus ocio since the Petitioner has sought for striking out of Thika ELC No. E112 of 2024 in which the Applicant was the Plainti and yet he is the 4th Respondent in the instant suit. 20. The Petitioner also contends that the Applicant has a right to le a cross-Petition instead of the instant Application seeking to strike out this Petition. Further that during the trial of this Petition the 4th Respondent will have an opportunity to present his case before the Court. Further that in the interlocutory Application that the Petitioner led in Court, at the Court’s Ruling on 9/11/2023 the Court held that the Petitioner has a prima facie case. 21. Further the Petition contends that this is not one of those plain cases that the Court can exercise the discretion to strike out as provided in Order 2 Rule 15 and quoted Sarwan Singh v Micheal Notkin (1952) 19 EACA, 117 and D.T. Dobie & Co. (K) Ltd vs Muchina (1982) KLR1, among others. Ultimately the Petitioner/Respondent seeks for dismissal of this Application and terms it as an abuse of the Court process and denies paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 12, 17 and 18 of the Applicant’s Adavit. 22. The Court directed when the parties appeared in Court on 16/02/2025 that the Applications are canvased by way of written submissions. At the time of writing this Ruling I note that all the parties had led their submissions however the parties had only led submission in response to their Applications. For example the Petitioner had led submissions dated 6/02/2025 in support of its Application dated 31/12/2024. The 3rd Interested Party had led its submissions dated 27/01/2025 in support of its Application dated 15/01/2025. 23. I will proceed with this rst Application before moving to the second, third and fourth Applications. The issues I will seek to determine here are: 24. i. Whether the Petition meets the threshold of a Petition. ii. Whether the Petition raises any Constitutional questions. iii. Who should bear the costs of the Application and the Petition? On the rst issue, the Court in Anarita Karimi Njeru vs. The Republic No.1 (1979) I KLR, held that a Constitutional Petition should set out with a degree of precision the Petitioner’s co-plaint, the provisions infringed and the manner in which they are alleged to be infringed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 4

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25. The same principle was later rearmed by the Court of Appeal in the case of Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 Others (2013)eKLR when the Court at paragraph 87(3) of the Judgment stated as follows: “ It is our nding that the Petition before the High Court was not pleaded with precision as required in Constitutional Petitions. Having reviewed the Petition and supporting adavit we have concluded, that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-corruption Commission Act, 2011, accordingly the Petition did not meet the standard enunciated in the Anarita Karimi Njeru case.” 26. At the same time, the Court in Peter Michobo Muiru vs Barclays Bank of Kenya Ltd & Another [2016] eKLR while discussing the Principles enunciated in Anarita Karimi Njeru’s case observed as follows: “ The principle, as this Court has previously stated, does not however equate absolute precision. There is no need for absolute and articial specicity: see Kevin Turunga Ithagi vs Hon. Justice Fred Ochieng & 5 Others (No.1) HCCP No.442 of 2015 [2015] eKLR. The general approach should be that each case must be independently viewed and understood by the Court and where the Court as well as the Respondent can painlessly identify and understand the Petitioner’s case as well as the Constitutional trajectory the case takes, then the merits of the case ought to be ventured into. Stalling the case through the technicality of want of formal competence will take a back seat. As was stated in the case of Donovan Earl Hamilton –v- Ian Hayles (Claim No. 2009 HCV 04623) by the Supreme Court of Judicature in Jamaica, the striking out of pleadings in Constitutional Petitions should be done only in the clearest of cases.The principle established in the Anarita Karimi Njeru’s case should thus not be applied line hook and sinker and the Court must always be cautious to avoid impeding the course of justice by denying a party access to the Court: see Samuel Gunja Sode & Another vs The County Assembly of Marsabit & 2 others [2016] eKLR, Nation Media Group Ltd –v- Attorney General [2007] 1 EA 261 as well as the Court of Appeal decision in Peter M. Kariuki –v- Attorney General [2014] eKLR.” 27. Therefore it is a well settled law that in a Constitutional Petition therefore, a party is not supposed to merely cite Constitutional provisions. He/she must with some reasonable degree of precision identify the Constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation and state some particulars of alleged infringement to enable the Respondent to be able to respond to each allegation accordingly. 28. I have perused the Petition and I do note that the Petitioner did indeed cite Articles 27, 35(2), 40, 47,50 (1) and 73(1) purportedly infringed but fell short of setting out the precise manner of infringement. 29. It is evident from the parties submissions that the survival of the Petition hinges on the issue as to whether the Petition raises a Constitutional matter and genuinely so. I am consequently to proceed on that basis and examine whether there has been demonstrated a genuine Constitutional matter. 30. Now, from the time the Constitution was inaugurated, there has been actions that show the transformative nature of the Constitution. This did not come as a surprise to many Kenyans since in the clamour for a new Constitution that is what Kenyans were craving for and the transformation was to touch every facet of the Kenyan life especially the rights of Kenyans. The Constitutional making process which had begun in the 1990’s culminated in a purposive and transformative document whose main purpose was to transform the country and facilitate its rebirth in all spheres. This is captured in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 5

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the principles and values which are outlined in Article 10 of the Constitution and also in almost every rst Article of each chapter of the Constitution, running from the Preamble through to Chapter 14 of the Constitution. 31. With such increased litigation space in the Constitutional arena, the Courts have also seen a plethora of ordinary litigation suits where the reliefs and remedies which would lie in ordinary common law remedies are being led as Constitutional matters. In this regard, Courts have been vigilant to literally act as a colander and lter out those cases which do not truly fall into the realm of Constitutional litigation but are simply so disguised and camouaged. Thus in the case of Hon. Uhuru Kenyatta vs. The Star Ltd [2013] eKLR it was correctly pointed out by the Court that not all disputes should attract a Constitutional adjudication. 32. Likewise civil matters which have been led or ought to be led in the ordinary Civil or Commercial Courts ought not be adjudicated upon as issues of enforcement of fundamental rights and freedoms: see Booth Irrigation vs. Mombasa Water Products (booth Irrigation No. 1) Nairobi Misc. 1052 of 2004 and also Edwin Thuo vs. Attorney General & Another Nairobi Petition No. 212 of 2011 (unreported). Where therefore exists an appropriate forum to address a party’s grievance, the party should be appropriately directed. 33. The result too of the foregoing is that parties coming to Court on the basis of the Constitution and alleged violations of their fundamental rights must be able to succinctly lay out their case to enable the Court sitting qua a Constitutional Court to assess whether the matter is genuinely a Constitutional one: see Anarita Karimi Njeru vs. The Republic [supra] and Trusted Society of Human Rights Alliance vs. Attorney General & 2 others [2012] eKLR. With detailed and complete pleadings it is the Court’s duty to determine whether there is a Constitutional matter: see the South African case of NM & Others vs. Smith & Others [2000] 5 S. A 250. 34. While I ascribe to the foregoing views and I hasten to add that the Court must be vigilant and not entertain every single Petition, notwithstanding the rather liberal and wide wording of Article 23 of the Constitution, when it is evidently apparent that the Petitioner’s claim has recourse in ordinary common law remedies rather than Constitutional remedies. Busy bodies should be shut out whilst parties with genuine Constitutional grievances and concerns welcomed: see Attorney General of Gambia –vs- Njie [1961] AC 617. 35. In the instant suit in which the Petitioner herein seeks declaratory and substantive reliefs is not an abstract, academic or hypothetical one but one in which the Petitioner genuinely believes that he has real and substantial rights at stake. There is quite clearly a material dispute as to whether the 4th Respondent with the help of the 2nd and 3rd Respondents have divested the Petitioner of its rights to a property. For purposes of the objection though, would the dispute herein rank as a “Constitutional matter”? 36. What constitutes a Constitutional matter is truly for the Court to ascertain after pegging the various provisions of the Constitution to the facts as pleaded. The Constitution itself does not dene what would constitute a Constitutional matter suce to note though that the Court should not assume that a matter is Constitutional simply because provisions of the Constitution are referred to and or Constitutional remedies are prayed for. It is for the Petitioner to demonstrate a bona de and genuine Constitutional matter through clear and concise pleadings. 37. With regard to the instant Petition and with the foregoing in mind, the Petitioner claims that Article 27, 40 and 47 of the Constitution which guarantee the Petitioner enjoyment of its right to property and fair administrative action has been contravened by the 3rd Respondent who through its corrupt ocers https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 6

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has caused the records for LR 134/8 to disappear or get lost in order to aid the 4th Respondent to deal with Petitioner’s land. It is to be noted that both the Petitioner and the 4th Respondent lay claim to proprietorship of LR 134/8 and LR 245/4. Of course, the Respondents deny all the allegations by the Petitioner. 38. Given the foregoing, I hold the view respectively so that this is yet another of the many cases where parties advance the theories of Constitutional issues where the issues should be canvassed through a normal civil suit. The Petitioner is alleging that the ocers at the oces of the 3rd Respondent are the ones who through fraudulent actions want to divest the Petitioner of its land and hand it to the 4th Respondent. 39. Truly if that was the case then the Petition has nothing to do with the Constitution. It was then a case of fraudulent acquisition of an individual’s private property by another private individual. To state that in such circumstances the Constitutional rights have been infringed would amount to visiting the Constitution to purely private civil disputes over land. In such a case the Petitioner’s remedy lay in an ordinary case for recovery of land and rectication of title. I am therefore unable to hold that the Petition raises a Constitutional matter in the circumstances. 40. Having found that there exists a remedy in civil law, which the Petitioner ought to have pursued, I direct that the parties are better o using the mechanism that will guarantee them an opportunity to properly ventilate their issues about proprietorship of the suit property. 41. In case of Bernard Murage vs Fineserve Africa Limited & 3 Others [2015] eKLR, Lenaola, J (as he then was) cautioned that: 42. “ 55. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and rst give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statute…. 56. I am bound to follow that principle of law since it ows from the other important principle that not each and every violation of the law must be raised before the High Court as a Constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued rst.” The same message was stressed by the Court of Appeal in Gabriel Mutava & 2 Others vs Managing Director Kenya Ports Authority & Another [2016] eKLR thus: “ Time and again it has been said that where there exists other sucient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and eectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation …. this Court has severally held that where a fundamental right is regulated by legislation, such legislation, and not the underlying Constitutional right, becomes the primary means for giving eect to the Constitutional rights …. Of course violations of Constitutional rights may nonetheless be dierent, and more serious than the violations of statutory or contractual rights. There is no clear demarcation however, where one violation begins and ends, and when one violation should attract desperate remedies. In employment matters, such as was the case here, the contract of employment should have been the entry point. The terms and conditions of employment in the contract, govern https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 7

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the employment relationship, except to the extent that the terms are contrary to the law; or have been superseded by statute. Certainly invoking the Constitutional route in the circumstances of this case was misguided. The Constitution should not be turned into a thoroughfare for resolution of every kind of common grievance. A corollary to the foregoing is the principle of Constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a Constitutional issue that should be done.” 43. A perusal of the Petition and submissions made before this Court disclose that the Petitioner has allegedly pleaded specically the violation of its rights to property enshrined under Article 40 of the Constitution. However, it must be remembered that the crux of its case is based on the ownership of the suit property between itself and the 4th Respondent in which it categorically claims that it has owned the suit property since 1973 having purchased the said suit property. 44. The question then would be whether the Applicant did purchase the said suit property, when and what consideration did they pay for the purchase of it or if it was an allocation by government then there will be need to interrogate the instruments that facilitated this allocation and the circumstances. It is my considered opinion that, the Court can answer these questions, but not through a Constitutional Petition. 45. In the case of COD and Ano. vs Nairobi City water & Sewerage Company (Petition 419 of 2015 (2015) eKLR the Court held that the Constitution cannot be used as a general substitute for normal procedures. The mere allegation that a human right has been contravened is not itself sucient to entitle the Applicant to invoke the jurisdiction of the Environment and Land Court under Article 162(b). The Court sitting as a Constitutional Court must through the doctrine of avoidance steer clear of determining disputes as if there were Constitutional questions being raised. 46. The Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR held that the principle of Constitutional avoidance entails that a Court will not determine a Constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a Constitutional Petition. 47. Having carefully perused the material before me, I come to the inevitable conclusion that this Petition oends the doctrine of Constitutional avoidance. The Petitioner would have been able to get all the remedies sought in a normal suit led in Court through a Plaint. A nding that the prayers made in the suit that the property belongs to a party would be sucient for the Court to make or any of the other awards sought by the Petitioner via a normal suit and not a Petition. 48. In the circumstances, I nd that the Petition in so far as it seeks the declaration of a right as an entitlement to a suit property, is misconceived. In this respect, I fully agree with the position taken by Hon. Chacha, J. in Godfrey Paul Okutoyi vs. Habil Olaka [2017] eKLR that: “ It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a Court of law in the manner allowed by that particular statute or in an ordinary suit as provided for by procedure. It is not every failure to act in accordance with a statutory provision or where an action is taken in breach of a statutory provision that should give rise to a Constitutional Petition. A party should only le a Constitutional Petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 8

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be led in the appropriate forum and in the manner allowed by the applicable law and procedure.” 49. It would be easy to say that the Court ought to deal with substantive justice rather than technical issues. However, if there is no nding that there is any violation of a Constitutional right, the Court I believe will be proceeding on an exercise in futility. 50. For the foregoing reasons, I nd that the Notice of Motion averment that the Petition does raise issues that need to be determined by way of normal Plaint as opposed to a Constitutional Petition is merited and I uphold the same. 51. Consequently, I do proceed to strike out the Petitioner’s Petition. The Petitioner may, if they so wish le a proper suit to seek redress. 52. For purposes of this Application to the issue of costs I am persuaded to adopt the position taken the Court in the case of Valentine Odhiambo & 2 others vs HF Development & Investment Ltd & another [2021] eKLR, where the Court opined as follows: “ The Court wishes to express itself on the issue of costs. Although the Court rules that the Petition oends the doctrine of Constitutional avoidance, and will indeed proceed to strike it out for being an abuse of the process of Court, it does not mean that the Court does not have the jurisdiction to adjudicate over the issues between the Petitioners and the Respondents when they are brought in the proper form. The Court agrees with the statement by Odunga J in the Martin Lemaiyan Makoosio Case (Supra). The Court’s nding is only that the dispute ought to have been brought as an ordinary Civil Suit not a Constitutional Petition. For this reason the Court will not condemn the Petitioners to pay the costs of the suit. The striking-out has also happened early enough even before the close of pleadings.” 53. I am persuaded by the above authorities. Whereas the Petitioner has been found to have come to Court in an inappropriate manner, the Court has not made any nding on the merits of the claim before it. Now that the Petition has been struck out early enough, in exercise of my discretion, I will not burden the Petitioner with any orders as to costs. Each party will thus bear their own costs. 54. I will now deal with the second Application dated 31/12/2024. This is an Application where the Petitioner/Applicant has sought the Court’s intervention to cite the 4th and 6th and 7th Respondents for contempt of Court. The particulars of the alleged contempt is contained in the grounds of the Application and the adavits sworn by Samuel Karuga dated 6/02/2025, Gilbert Ng’ang’a, Mary Nyambura Wanjohi and Micheal Juma Lwanda. 55. The Petitioner alleges that the 4th to 7th Respondents disobeyed the Court order issued 9/11/2023 by Justice Kemei by hiring 50-100 goons to disrupt peaceful occupation of the Petitioner to the suit property. That despite the 4th-7th Respondents being aware of the existence of the said Court order they disobeyed the order. 56. The Defendants (alleged contemnors) have denied the allegation of contempt through their replying adavits. The 4th Respondent in his Replying Adavit sworn by David Gichia Kinyitta on 10/02/2025 where he deponed that he is the registered as the registered owner of LR 134/8 and LR 245/5 and that he has since subdivided and sold portions to the 5th Respondent and as copy of title was annexed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 9

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57. That his title is yet to be impeached and that he has not interfered with the substratum of the suit. That the Petitioner’s allegation of trespass are serious and should have been reported to Police. He denies knowing the alleged victims of the invasion. 58. That he has perused the Adavits of Micheal Juma Lwanda, Mary Nyambura Wanjohi and Gilbert Ng’ang’a and noted that he is not mentioned as having been connected to alleged goons. 59. On behalf of the 5th and 6th Respondents Antony Wachira Njoroge led a Replying Adavit sworn on 11/02/2025 as Director of the 5th Respondent. It is the case for their case that the 6th and 7th Respondents have been improperly joined to the Petition since the Petitioner did not seek leave and therefore their joinder is irregular as stated in the case of Karsan Ramji & Sons Ltd vs County Assembly of Kitui & Another [2022]eKLR. That infact, there was no personal service of the said order and that they never interfered with Petitioner’s quiet enjoyment of LR 138/18 and LR 245/4. 60. On their part the 7th Respondent led a Replying Adavit of service sworn by Mercy Wamugo Njoroge who reiterated the fact that the Petitioner/Applicant failed to apply for leave to join the 5, 6 and 7th Defendants to the Application and therefore they are wrongly joined to the Application. It is the contention of the 7th Respondent that the Petitioner act of serving them through the 5th Respondent was not proper service to the 6th and the 7th Respondents. 61. Further that the Petitioner has not been able to link in its pleadings the goons to the 6th and 7th Defendants. 62. A party seeking for contempt and punishment for Court must establish the service of the order, awareness of the same, clarity of the order and prove the manner of the disobedience. 63. In the instant Application the Petitioner has sought to have the 4th, 6th and 7th Respondents cited for contempt. It has however emerged that on 9/11/2023 when the Order was issued the 6th and 7th Respondents were not parties to the Petition. Further, the 4th Respondent has averred that in perusing the Adavits of the victims of the alleged invasion none of them have mentioned that the 4th Respondent was involved in the trespass or harassment of the Petitioner’s workers. 64. Indeed if the 6th and 7th Respondents were not parties to the Petition at the time of issuance of the said order, it certainly follows that they would not be held in contempt of what they do not know. Infact they were not even served with the said order. 65. The Court in the case of Shimmers Plaza Ltd vs NBK (2015) eKLR, the Court said that the knowledge of the order by the contemnors Advocates on record was enough since a Lawyer is presumed to be seized of full instructions and to be reporting back to the client all what has transpired before Court. 66. In the case of TSC vs KNUT and 2 others (2013) eKLR, the Court said that the reason contempt of Court exists is to safeguard the rule of law in the administration of justice while in Econet Wireless (K) Ltd vs Minister for Information & Construction (2005) 1KLR 828, the Court held that the authority and dignity of the Court must be held at all times and that the Court will not condone a deliberate disobedience of its orders. 67. And in the case of Cecil Miller vs Jackson Njeru (2017) eKLR, the Court set out certain elements to be proved for contempt of Court which include: that the order was clear and unambiguous; was binding on the Defendant; the Defendant had knowledge or proper notice of the terms and has acted in breach of the terms in a conduct which was deliberate. 68. From the Court of Appeal and in the case of Michael Sistu Mwaura Kamau vs DPP & 4 Others (2018) eKLR, the essential elements elaborated in the case of Cecil Miller (supra) were restated and the Court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 10

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of Appeal stated that the essential elements had to be satised especially the willful and deliberate disobedience of the order. The Court cited with approval Republic vs Ahmed Abolfathi Mohamad & another (2018) eKLR, and Jihan Freighters Ltd vs Hardware & General Stores Ltd (2015) eKLR, where it was held that the order must be precise and clear so as to leave no doubt as to what each party was supposed to do or refrain from doing and that the standard of proof is higher than proof on a balance of probabilities. 69. There is no doubt that the Court has jurisdiction to punish for the violation of its orders. The Court of Appeal in the case of Woburn Estate Limited -vs- Margaret Bashforth (2016)eKLR while arming that position stated as follows:“ The jurisdiction of the High Court (or any other Court for that matter) to punish for the violation of its orders cannot be in question. Apart from section 5(1) of the Judicature Act that vests in the High Court the power, like those of the High Court of Justice in England, to punish any party who violates its orders., the Court, by virtue only of being a Court has inherent powers to make sure its process is not abused and its authority and dignity is upheld at all times” 70. Contempt of Court is a serious indictment and for a person and/or party to be punished for contempt it must be demonstrated the party was served with the order and /or was well aware and had knowledge of the terms of the order and willfully and deliberately disobeyed the order. The standard of proof of contempt is at a higher pedestal than proof on a balance of probabilities though not as high as proof beyond reasonable doubt as is the case in Criminal cases. The Court of Appeal in the case of Michel Sistie Mwaura Kamau -vs- Director of Prosecutions & 4 others (2018) eKLR stated as follows as to what would amount to contempt of Court:“ …. It is trite that to commit a person for contempt of Court, the Court must be satised that he had willfully and deliberately disobeyed a Court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act (now declared unconstitutional) and the Ruling of the Supreme Court in Republic -vs- Ahmed Ablfathi Mohammed & Another (supra) secondly, as this Court emphasized in Jilan Freighters Ltd -vs- Hardware & General Stores Ltd and A.B & another -vs- R (2016) eKLR to sustain committal for contempt of Court, the order of the Court that is alleged to have been deliberately disobeyed must be clear and precise so to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. ( see Mutitika -vs- Baharinin Farm (supra) and Republic -vs- Ahmed Abolfathi Mohammed & Another (supra)” 71. Applying the principles derived from the foregoing authorities, it is my considered view that the Court order of 9/11/2023 was clear, had no ambiguity, but was not served upon some of the Petitioners in person and the alleged acts of breach have not been particularized to the specicity of the alleged contemnors. 72. In conclusion I must state here that this Court is not saying that there was no trespass and invasion on the suit property as alleged by the Petitioner but that the Court is not able to link the action to the Respondents purely from the Application led by the Petitioner and the Adavits in support of the Application. Notably, in order to convict the Respondents for contempt and apply the appropriate sanctions against them, sucient proof showing that they invaded the suit property after the Court https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 11

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order and that they were present when the said order was issued by the Court or were served and made aware or that their Counsels were in Court at the time of the issuance of the order. 73. As sucient proof has not been availed by the Petitioner in his Application, I nd that the Application dated 31/12/2024 has no merit and the same is dismissed with costs to the Respondents. 74. Now in the context of my Ruling on the Petition the Notice of Motion Application dated 15/01/2025 and the Notice of Preliminary Objection dated 15/01/2025 are moot. 75. Given the foregoing the Court issues the following Orders: a. Application dated 31/12/2024 has no merit and the same is dismissed with costs to the Respondents. b. I strike out the Petition with no order as to costs. c. Notice of Motion Application dated 15/01/2025 and the Notice of Preliminary Objection dated 15/01/2025 are moot. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 27TH DAY OF FEBRUARY 2025 VIA MICROSOFT TEAMS. MOGENI J JUDGE In the presence of: Dr. Kuria, SC for the Plainti/Petitioner/Applicant No appearance for the 1st – 3rd Respondents Mr. Owang for the 4th Respondent Mr. Barrack for the 5th Respondent Ms. Ng’ang’a for the Intended Interested Party Mr. Muguku for Intended Interested Party Mr. Melita - Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18668/eng@2025-02-27 12

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