Dodhia v Kung’u & another (Environment and Land Case 1577 of 2014) [2026] KEELC 1336 (KLR)

6. The OCS Spring Valley Police Station to ensure the smooth and peaceful handover of possession of the property known as LR No. 7741/422 to the plaintifi. 2. The application is premised on the grounds inter alia that this court delivered judgment on 12th October, 2017 in his favour. The application is further supported by the afidavit of the plaintifi/ applicant seemingly sworn on 20th August, 2025. The plaintifi/ applicant deposed that following the judgment delivered on 12th October, 2017 the 1st defendant/contemnor refused to transfer the suit property to him and eventually the Chief Registrar Lands efiected the said transfer. Further, that there was an order for specific performance for payment of the balance of the purchase price which the 1st defendant/ contemnor has refused or neglected to confirm the bank account details. Having refused to confirm the said payments, his advocates paid the balance of the purchase price, but the same was returned. 3. The plaintifi/applicant deposed that despite the suit property being registered in his name, he has been unable to pay the remainder of the purchase price, and that he has also been unable to take possession thereof. He deposed that the 1st defendant is aware of the orders of this court requiring her to fulfil her obligations under the agreement but has chosen to ignore the same. The plaintifi/applicant deposed that it is now more than 8 years since the judgment and decree were issued, and it is only fair that the orders are granted. 4. In response thereto, the 1st defendant/contemnor filed the notice of preliminary objection dated 10th November, 2025 challenging the instant application on the following grounds:i. The applicant has primarily relied on the judgment that was delivered by the court in his favour dated 12th October, 2017. As such, Order 22 of the Civil Procedure Rules does not provide for contempt of court as one of the modes of enforcing such a judgment. ii. The applicant is misusing the law of contempt for a purpose that was never meant to be achieved through such a procedure. iii. That as judgment was rendered by the court in this suit on 12th October, 2017 the filing of an application notice in the same suit amounts to an abuse of the process of the court since it is not open to the plaintifi to file an application notice on a suit that was conducted by way of a delivery of a judgment on 12th October, 2017. iv. That the application is also fatally defective as it has introduced a party known as the applicant and another party known as the 1st defendant/contemnor which parties are difierent from the parties that have always existed in this suit from inception upto the date of the delivery of judgment on 12th October, 2017. 5. The application and the preliminary objection were canvassed through written submissions. The plaintifi/applicant filed his written submissions dated 25th November, 2025 and 10th December, 2025. The 1st defendant/contemnor filed her written submissions dated 9th December, 2025. And on the 26th January, 2026 the counsel for the parties herein highlighted their submissions. 6. I have considered the application, the notice of preliminary objection and the written submissions filed. I will first deal with the preliminary objection as it may as well dispose the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 2

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7. Law, JA in Mukisa Biscuits Manufacturing Company Limited v West End Distributors (1969) EA 696 stated as follows:“ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 8. Also, the case of John Musakali v Speaker County of Bungoma & 4 others (2015) eKLR, it was held that: “ The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 9. Further, Ojwang J (as he then was) in Oraro v Mbaja (2005) KLR 141 where after quoting the statement of Law, JA in the Mukisa Biscuits case (supra) went on to state that: “ A 'preliminary objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point. . . Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence...” 10. From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 11. Grounds one and two of the preliminary objection were that Order 22 of the Civil Procedure Rules does not provide for contempt of court as a mode of enforcing the judgment of the court. It is not in dispute that judgment was delivered in this matter on 12th October, 2017. Looking at the provisions on which the instant application is anchored, the plaintifi/applicant has not made any reference to Order 22. However, the 1st defendant/contemnor argued that since there was no order requiring the handing over of the suit property to the plaintifi/applicant, it was not open for him to craft his own preferred orders. 12. Order 22 rule 29 (1) of the Civil Procedure Rules provides:“ Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 3

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receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.” 13. Thus on this ground, I am satisfied that the plaintifi/applicant ought to move the court accordingly in seeking the eviction of the 1st defendant/contemnor. I say so bearing in mind that he now has a certificate of title registered in his name which was issued on 22nd January, 2025. 14. On the third ground, the 1st defendant/contemnor argued that the filing of an application notice in the same suit amounts to an abuse of the process of the court since it is not open to the plaintifi to file an application notice on a suit that was conducted by way of a delivery of a judgment on 12th October, 2017. First and foremost, this is not a pure point of law. Secondly, I have had dificulty trying to understand what the 1st defendant/ contemnor meant by filing an application in a suit where judgment has already been delivered. Let me point out that Section 29 of the Environment and Land Court clearly states that:“ Any person who refuses, fails or neglects to obey an order or direction of the court given under this Act, commits an ofience, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 15. This provision of the law grants this court the power to punish for willful disobedience of its orders as when it arises. The application of the same provision transcends even after judgment. While the 1st defendant/contemnor submitted that this is unheard of, I will advise her and the learned counsel to have a look at the following cases: Kooba Kenya Limited v County Government of Mombasa [2017] KEHC 2966 (KLR), Angello Costabir & another v Hussein Ali Odey & 4 others [2019] KEHC 2004 (KLR), Njenga v Munyua & another [2023] KEELC 16286 (KLR), and Kenya Railways Corporation v Ali & another; Chief Land Registrar (Interested Party) [2025] KEELC 8074 (KLR). 16. On the fourth ground, the 1st defendant/contemnor argued that the suit is defective for introducing parties who are difierent from the parties that existed in the main suit. I presume by this she inferred to the new parties as applicant and 1st defendant/contemnor instead of the plaintifi and the 1st defendant. Even to say the least, this ground is in and of itself very poorly thought out and drafted in carelessness. Seemingly, and from the submissions filed by the 1st defendant/contemnor, this ground was not argued or supported further. I would presume perhaps this was the reason it was abandoned. 17. From the above, I find that the notice of preliminary objection dated 10th November, 2025 does not raise pure points of law and the same is hereby dismissed with costs to the plaintifi/applicant. 18. Turning to the application, the plaintifi/applicant moved the court seeking its intervention on that the 1st defendant/contemnor be found in contempt for willfully disobeying the orders of the court in the judgment delivered on 12th October, 2017. I have read the judgment and the decree issued on 14th February, 2018. According to the decree, the following orders were pronounced:1. That the 1st defendant was the author of her own misfortune and her claim for damages is dismissed for mental anguish from the plaintifi. 2. That the 1st defendant’s counterclaim is dismissed with costs to the plaintifi. 3. That it is hereby declared that there exists a valid sale agreement between the plaintifi and the first defendant. 4. That a permanent injunction is issued restraining the first defendant whether by herself, her beneficiaries, employees and/or agents, from selling, transferring, alienating, developing or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 4

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whatsoever dealing with the suit property being LR Number 7741/422, Nairobi, a subdivision of LR No. 7741/163, Nairobi. 5. That an order is issued compelling the second defendant to issue a certificate of title and/or a provisional certificate of title in respect of the suit property. 6. That an order of specific performance is hereby issued compelling the first defendant to transfer the suit property to the plaintifi. 7. That an order is issued requiring the deputy Registrar of the High Court to execute any document necessary for the:i. Procurement of a certificate of title and/or a provisional certificate of title to the suit property. ii. The issuance of a deed plan for the suit property. iii. Transfer of the suit property to the plaintifi. 8. That the plaintifi will have the costs of this suit to be borne by the 1st defendant. 9. That the plaintifi will cooperate with the 1st defendant and withdraw the caveat at the time of registration of the transfer of the suit property in his favour. 19. The plaintifi/applicant deposed that the 1st defendant/contemnor refused to transfer the suit property to him and eventually the chief registrar lands efiected the said transfer. This is evidenced by the transfer instruments signed by the deputy registrar of this court. He also argued that there was an order for specific performance for payment of the balance of the purchase price which the 1st defendant/ contemnor has refused or neglected to confirm the bank account details. Having refused to confirm the said payments, his advocates paid the balance of the purchase price, but the same was returned. 20. The plaintifi/applicant further contended that despite the suit property being registered in his name, he has been unable to pay the remainder of the purchase price, and he has also been unable to take possession thereof. On the issue of actual possession of the suit property, Order 22 rule 29 of the Civil Procedure Rules gives proper instructions on what a party is required to do, and contempt proceedings may not be the appropriate avenue. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), the Court of Appeal observed as follows:“ The principle propounded In Re Maria Annie Davies [1889] 21 QBD 236, and 239, that“Recourse ought not to be had to process of contempt in aid of a civil remedy where there is any other method of doing justice. The observations of the later Master of the Rolls in the case of Re Clement seem much in point: It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is not other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. I say that a judge should be most careful to see that the cause cannot be mode of dealing with persons brought before him. On accusations of contempt should be adopted. I have myself had on many occasions to consider this jurisdiction, and I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men’s rights, that is, if no other pertinent remedy can be found. Probably that will be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 5

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discovered after consideration to be the true measure of the exercise of the jurisdiction must be born in mind.” 21. More importantly, the judgment and the decree did not expressly provide for the handing over of the suit property. However, I will seek to adopt a deeper interpretation and meaning of order no. 3 where the court established that there existed a valid sale agreement between the parties. In my understanding, the parties remained bound by the terms of the said agreement as it was found to be valid. I say this for the reason that the plaintifi/applicant moved the court on account of failure and refusal by the 1st defendant/ contemnor to complete the sale. In enforcing order 3, the 1st defendant/contemnor needed to complete the sale through receipt of the balance of the purchase price thereof. From the record, the transfer of the suit property has already been efiected and what remains is the balance of the purchase price which the plaintifi/applicant is desirous to pay. The documents annexed to the supporting afidavit bears witness to the plaintifi/applicant’s intention to clear and settle the balance of the purchase price. 22. In Republic v Mohammed & another [2019] KESC 47 (KLR), the Supreme Court held as follows:“ There is no doubt that an act in contempt of the court constitutes an afiront to judicial authority; and the court has the liberty and empowerment to mete out penalty for such conduct, in a proper case. The object is, firstly, to vindicate the court’s authority; secondly, to uphold honourable conduct among advocates, in their standing as oficers of the court; and thirdly, to safeguard its processes for assuring compliance, so as to sustain the rule of law and the administration of justice.” With emphasis. 23. In the case of Kenya Human Rights Commission v Attorney General; Law Society of Kenya (Interested Party) [2018] KEHC 9656 (KLR), it was observed: “ 57. 24. Article 159 of the Constitution recognizes the judicial authority of courts and tribunals established under the Constitution. Courts and tribunals exercise this authority on behalf of the people. The decisions courts make are for and on behalf of the people and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is vital for the preservation of our constitutional democracy. The Judiciary acts only in accordance with the Constitution and the law (Article 160) and exercises its judicial authority through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become efiective in the discharge of their constitutional mandate.” This court frowns upon litigants who are intent to undermine the rule of law and the administration of justice. It is now close to 9 years since judgment was delivered, yet the 1st defendant/contemnor has ‘sworn’ not to complete the sale. What she implies, especially in the letter dated 20th May, 2025 written by her advocate is akin to someone saying that ‘there is nothing you can do to me’ which is total disregard and disrespect to the overriding objective of this court which is to uphold substantive justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 6

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25. It is my finding that the 1st defendant/contemnor is in contempt of the judgment of this court delivered on 12th October, 2017 and the decree issued on 14th February, 2018 pursuant to Order 3 thereof. The notice of motion dated 27th August, 2025 has merit and I grant the following orders:i. A notice to show cause to issue forthwith to the 1st defendant/contemnor to show cause why she should not be committed to jail or punished. ii. The 1st defendant/contemnor to appear in court on 22nd April, 2026 at 2.30 p.m. for the said notice to show cause. iii. Failure to comply with order (ii) above, warrants of arrest to issue. iv. The plaintifi/applicant is entitled to the costs of this application. The same to be borne by the 1st defendant/contemnor. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 9TH DAY OF MARCH, 2026. HON. MBOGO C. G. JUDGE In the presence of: Ms. Benson Agunga - Court assistant. Mr. Ochieng for the Plaintifi/Applicant. Mr. Kabebe holding brief for Mr. Gikandi for the 1st Defendant /Contemnor. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1336/eng@2026-03-09 7

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