Mware v Ajode (Environment and Land Appeal E010 of 2025) [2026] KEELC 63 (KLR)

3. The application was opposed vide the grounds of opposition dated 10th November 2025. The application was heard orally on 19th November 2025. 4. The substantive relief sought is to have the respondent cited and punished for being in contempt of court. The grounds upon which the application is brought are that on 10th July 2025 the court issued an order of stay of execution of the judgement in Kisumu MCELC No. E037 of 2020 which order was duly served upon the respondent and her advocate. That despite being in receipt of the order the respondent proceeded to interfere with the applicant’s occupation of land parcel KISUMU/ KONYA/6615 by gaining forceful entry into the land, destroying the applicant’s structures and starting construction thereon by digging a toilet with a view to evict the applicant before the appeal is heard. 5. That the respondent’s actions are malicious and calculated towards defeating justice in this matter. That court orders are not issued in vain and that the same are supposed to be obeyed. That the respondent’s actions are in contempt of court and should be penalized and/or punished by the court to respect due process of the law and obey court orders so as to deter lawlessness. 6. To the Supporting Afidavit the applicant annexed a copy of the court order dated 10th July 2025 and copies of photographs showing the activities complained of. 7. The Respondent’s case is that the application is incompetent, bad in law and lacks merit and should be dismissed with costs to the respondent. That the application is a sham, frivolous and scandalous since the applicant has already lodged an appeal that is bound to be admitted for hearing. That the application afironts the provisions of Order 5 Rules 22 Civil Procedure Rules and is therefore devoid of merit. 8. I have considered the application the grounds of opposition thereto and the submissions made. In Johari School Limited -vs- Rosemary Wamburu t/a Johari School [2021] eKLR the elements of contempt of court were stated to be; a. the existence of valid court order whose terms are clear and unambiguous and binding on the respondent. b. proof that the respondent had knowledge or proper notice of the terms of the order. c. proof that the respondent acted in breach of the terms of the order; and d. that the conduct or action of the respondent was deliberate or willful. 9. In the present case there is no doubt that there is a court order issued on 10th July 2025 staying execution of the judgment dated 7th February 2025 in KSM CMC ELC No. E037 of 2020 pending hearing and determination of the appeal herein. 10. The applicant’s case is that the order was served upon the respondent and the respondent’s Advocates. No Afidavit of service was filed to demonstrate service. The record shows that the order was issued in the absence of the respondent. The applicant however contends that the respondent was notified of the order and in response provided the details that were required for opening of the joint account for deposit of the security as directed in the order. Service or knowledge of the order has not been denied by the respondent. In the case of Basil Criticos -vs- Attoney General & 8 Others (2012)eKLR where it was held that knowledge supersedes personal service – that where a party acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/63/eng@2026-01-20 2

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unnecessary. I find that the respondent had knowledge of the order hence the requirement for personal service was superseded. 11. Whether the respondent acted in breach of the court order of stay of execution of the judgement, the record shows that the judgment whose execution was stayed granted an order of permanent injunction restraining the appellant by himself or his agents from alienating, encroaching, erecting fence onto, creating a road, ploughing, cultivating or using part of the whole parcel or acting in any manner which is inconsistent with the respondent’s rights over parcel of land number KISUMU/KONYA/2208. The order also directed for eviction of the appellant from the portion of KISUMU/KONYA/2208 where the access road was extended without consent of the respondent after expiry of 90 days from the date of the judgement. 12. The applicant’s complaint is that the respondent entered the land forcefully, deposited materials and dug a toilet in a bid to evict the applicant. To demonstrate this the applicant exhibited 3 copies of photographs. It was submitted on behalf of the applicant that contempt of court is an act that defies the authority of the court and that the respondent has defied the court order as demonstrated in the photographs. The photographs are however faint copies which do not show the images thereon with clarity. Further, there is no evidence to connect the images on the photographs to the suit land. 13. On behalf of the respondent it was submitted that there was no personal service of the order upon the respondent. That the photographs attached to the Supporting Afidavit were the same photos relied on in an application for injunction before the trial court. That the stay order only applied to the disputed area of the suit land; that the respondent is at liberty to use the rest of the land. That the application does not meet the threshold of the standard of proof for contempt of court case which is proof above balance of probabilities. 14. I have noted that there are no dates to the photographs. It was not denied that the photographs exhibited had been in existence before the court order dated 10th July 2025 was made and were used as exhibit in an application for injunction before the trial court. 15. The standard of prove for contempt proceedings is higher than proof on a balance of probabilities. In Mutitika vs Baharini Farm Limited [1985] KLR 227, it was held that “contempt of court is an ofience of a criminal character. 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 reasonable doubt….the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…” 16. The court finds that in the present case the standard of proof has not been met that contempt of court has not been proved. The application is dismissed. Each party to bear own costs of the application. Orders accordingly. RULING DATED AND SIGNED AT KISUMU , DELIVERED VIRTUALLY THIS 20TH DAY OF JANUARY 2026 . E. ASATI, JUDGE. In the presence of: Maureen Court Assistant. Wagumba for the Appellant N/A for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/63/eng@2026-01-20 3

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