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c. That this Honourable Court be pleased to punish the 1st and 2nd Defendants/Respondent by imprisonment for a period of 6 months or such other period that the Honourable Court would deem fit. d. That the OCS and OCPD Gatongora do ensure compliance and that peace prevails. e. That the Respondent be condemned to meet the cost of this Application. 2. The subject Application is premised on the various grounds which have been enumerated in the body of the Application and same is further supported by the afidavit of one John Maina Mburu, the director and the current chairman of the board of director of the Applicant company herein and to which the same has attached assorted annexures in support thereof. 3. The Application is opposed. Peter Kamau Mwangi vide a sworn Replying Afidavit on 6/03/2024 on behalf of the 2nd Respondent denying any acts of contempt on his behalf and on behalf of other village elders of Mitikenda area stating that they were not party to the construction and neither are they part of the school that is being referred to by the Applicant. 4. He further averred that he only became aware of the Court Order when he was informed by the Police and that due to the nature of the order himself and the other Respondents did not go near the suit property as the order barred them not to go to the property. 5. He contends that if any construction was not halted it is not because they disobeyed any Court order but that the police failed to implement an order issued by the Court since on their part they were not part of the team that was undertaking construction. 6. In response to the Replying Afidavit, the Plaintifi/Applicant filed a further afidavit sworn on 15/03/2024 in which he deponed that this Honourable Court issued orders restraining the Respondents, their employees or servants from continued construction on land parcel Riuru Kiu Block 2(Githunguri) 4016 and a copy of the same was provided as annexure JMM1. He also provided other annexures (JMM2, JMM 3(a) (b) and (c), showing the progression of construction from the early stage to the completion despite the existence of the Court Order. 7. The Applicant contends that the Respondents were aware of the Court Order having been served and the Police also being aware of its role in enforcing the adherence to the Court Order. 8. My perusal of the file has revealed that the Police enquired vide their letter dated 14/11/2023 from the Court on the authenticity of the Court Order issued on 9/11/2023 and the Court confirmed through the Court Administrator, Ibrahim Robow vide their letter of even date Ref No: TKA/ELC/POLICE that the order given on 8/11/2023 and issued on 9/11/2023 was authentic and emanated from the Court. 9. The 3rd Defendant did not participate in the Application. 10. The parties’ respective Counsels filed written submissions which I have had opportunity to consider. 11. I have carefully reviewed the Application, along with its supporting grounds and the Afidavit filed, as well as the insightful submissions made by Counsel. The crucial question at hand is whether the Applicant has met the requisite threshold for the grant of the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1892/eng@2026-02-26 2

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12. The essence of the law on contempt is to safeguard the honour of the Court and uphold the principles of the rule of law. The Court in the case of Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 stated that: “ A 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 standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to ofiences which can be said to be quasi-criminal in nature. However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be heard to process contempt of Court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject … applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the Court where contempt is alleged to or has been committed, and or an Application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the ofiender is a party to the proceedings or not.” 13. In the case of Koilel & 2 Others vs Koilel & Another (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR) (30 June 2022) (Judgment) the Court of Appeal discussed the essential elements of contempt as thus: “ 32. Judicial borrowing from contemporary jurisdiction: in order to succeed in civil contempt proceedings, the Applicant has to prove; (i) the terms of the order; (ii) Knowledge of these terms by the Respondent; and (iii) Failure by the Respondent to comply with the terms of the order (Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005). 33. …. 34. The jurisprudence now favors knowledge of the existence of Court orders as opposed to strict personal service. In the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR the Court of Appeal posed the question as to whether knowledge of a Court order or judgment by an Advocate of the alleged contemnor would be suficient for purpose of contempt proceedings and answered the question in the afirmative stating:“ We hold the view that it does. This is more so in a case as this one where the Advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the efiect that when an Advocate appears in Court on instructions of a party, then it behooves him to report back to the client all that transpired in Court that has a bearing on the clients’ case ….” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1892/eng@2026-02-26 3

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14. In this case this Honorable Court issued the Court Orders ex parte and listed the matter for inter partes hearing on 4/12/2023. When the parties appeared in Court the Respondents were represented by Mr Weyimi who never set aside the Ex Parte Orders for Status Quo which was to last till the inter partes hearing. Neither did he apply to set aside the order issued restricting and prohibiting any dealings on Land Parcel Ruiru Kiu Block 2(Githunguri) 4016 and preservation of the same pending the hearing and determination of the suit. Thus the Counsels for the Respondents were duly informed of the Court's directive and Orders. 15. Justice Ojwang (as he then was) held in the case of Wildlife Lodges Ltd Vs County Council of Narok & Another. (2005)2 EA that, the whole purpose of litigation as a process of judicial administration is lost if Court orders are violated with impunity. On his part Justice Lenaola (as he then was) held in the case of Kenya Tea Growers Association Vs Francis Atwoli & 5 Others (2012)eKLR, that, a person who disobeys a Court Order, whether he is a Party to the Proceedings in which the order was made or not, is guilty of contempt. 16. In another decision by the Court of Appeal it was held in the Court of Appeal case of; Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & Another (2014) eKLR that:“ When a litigant approaches the High Court seeking remedies for alleged breach of fundamental rights, the Court is mandated to determine the grievances and issue orders as it may deem fit. We agree with the learned trial Judges those orders were supposed to be obeyed with utmost obedience until set aside or successfully appealed against. We hasten to restate as it has been done many times before that disobedience of Court orders seriously undermines the rule of law. Every time a person or an institution especially a public oficer disobeys a Court order, there should be no celebration. A disobedience of a Court order should be treated as a funeral, with compassion for the death of the rule of law. The appellants who prepared the order paper and presided over the proceedings of impeachment after having been served with the orders cannot conveniently claim immunity and at the same time claim to respect and obey the law”. 17. It follows that in the instant case the Respondents who were served with the Court Order including the OCS Gatongora Police Station who had the responsibility to ensure that the orders are complied with and that peace prevailed chose to instead participate in the funeral of the rule of law with glee. 18. I have considered the argument of the 1st and 2nd Respondents and note that they are not denying that there was a Court Order they are just denying that they ever went to the construction site. They have chosen to blame the Police instead for disobedience of a Court Order which they were well aware of even when they appeared in Court through their Counsels on 4/12/2023 and subsequent appearances. They never sought to set aside the Order issued on 8/11/2023. 19. I am however conscious that the Order issued was an ex-parte Order which the Applicant has not proved that they extracted and served the parties in the suit. 20. While it is common ground on both sides that this Court did issue the Ex-parte prohibitory order directed to the 1st and 2nd Respondents, what is still not addressed is the issue of personal service of the Court Order on the parties who are stated to have disobeyed it. To that end, I wish to cite and rely on https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1892/eng@2026-02-26 4

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the case of Anne Wanjiru Kabiru vs. Bedan M. Chege (t/a Bedans Auctioneering Services) Misc. Appl. No. 114 of 2007 (2008) eKLR wherein it was stated as follows: “ It is now trite law that for an Application for committal of anyone to prison for contempt of Court to succeed, there must have been personal service of the order in question as well as a penal notice upon the alleged contemnor” 21. This Court has seen the Afidavit of Service it is evident that service was efiected on the Advocates of the 1st and 2nd Respondents who attended subsequent Court sessions and the OCS Gatongora Police Station. There is however no evidence that service was efiected personally upon Peter Kamau Mwangi, Haron Mburu Thuita, Simon Mburu Gitau and Dan Gitau being the 1st and 2nd Respondents. It is therefore not clear that the said persons were aware of the Court Order issued by this Court especially noting that it was issued ex parte on 8/11/2023. It was vital for the Plaintifi/Applicant to demonstrate that the alleged contemnors were personally served with that Court Order or had knowledge of the same. However, I must state that the Plaintifis have failed in this regard. In the circumstances, I find it dificult to declare them contemnors of this Court’s Order. 22. In the circumstances, I can do no better than to dismiss this Application. Costs shall be in the cause. Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 26TH DAY OF FEBRUARY 2025 VIA MICROSOFT TEAMS. …………………… MOGENI J JUDGE In the presence of: Mr. Kanyi for the Plaintifi Mr. Waweru Nyambura for the 1st, 2nd and 3rd Defendants Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1892/eng@2026-02-26 5

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