Ethics and Anti-Corruption Commission v Fresh N’ Nice Ltd & 8 others (Environment and Land Case E004 of 2021) [2026] KEELC 3580 (KLR)

2. 3. The reliefs sought are: i. That the Application be certified urgent and be heard ex parte in the first instant owing to the continuing acts of contempt and ongoing unlawful construction of the suit property. ii. That pending the hearing and determination of this Application inter partes, this court be pleased to issue an immediate order directing the County Government of Isiolo, its oficers, servants, employees, contractors, agents and/or any persons acting through or under it to immediately cease and stop all construction works, excavation works, developments, occupation and/or any form of interference with the suit property known as L R No. 7918/736. iii. That this honorable court be pleased to cite the County Government of Isiolo, the County Secretary, the Chief Oficer in charge of Lands and Physical Planning, the Chief Oficer Public Works, and any other responsible oficers involved in the unlawful construction works for contempt of the Orders issued by this Honourable Court on 09.02.2026. iv. That this honorable court be pleased to punish the contemnors by way of committal to civil jail for such term as this honorable court may deem fit and just, and/or by imposition of fines and/or such other sanction the court may deem necessary for the ends of justice. v. That this honorable court be pleased to issue a mandatory order compelling the immediate demolition, removal and/or dismantling of all structures unlawfully erected on the suit property in violation of the orders of this honorable court, but not limited to the perimeter wall already constructed. vi. That this honorable court be pleased to direct that oficer commanding station [OCS], Isiolo Police Station, and/or such other police oficers as may be necessary, do supervise, enforce and ensure strict compliance with the orders of this honorable court. vii. That this honorable court be pleased to order that the costs of demolition and restoration of the suit property to its previous condition be borne personally by the contemnors/3rd interested party. viii. That this Honourable court be pleased to order that the contemnors do bear the costs of this application. ix. That this honorable court do issue such further orders it may deem fit, just and expedient for the preservation of the suit property and the protection of the dignity and authority of this court. The subject application is premised on various grounds. The grounds are: The Applicant is the registered owner/proprietor of L R No. 7918/735; the suit property is the subject of the instant proceedings; the proceedings are still pending before the court; the court issued an order of temporary injunction on the 09.02.2026; the orders of the court barred/restrained the 3rd interested party from undertaking excavation/construction on the suit property; the 3rd interested party has disregarded and disobeyed the orders of the court; and the conduct of the 3rd interested party constitute contempt of court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3580/eng@2026-06-03 2

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4. Additionally, it has been posited thus: The orders of the court were issued in the presence of learned counsel for the parties; the learned counsel for the 3rd interested party was privy to and knowledgeable of the orders of the court; the 3rd interested party is therefore aware of the terms and tenor of the court orders; the designated oficers of the 3rd interested party are guilty of contempt; and the applicant has established suficient basis to warrant the issuance of the orders sought. 5. The Application is supported by the afidavit of Mustafa Abdi Aman. The afidavit is sworn on the 08.05.2026. The deponent of the supporting afidavit has reiterated and reafirmed the grounds contained in the body of the application. Furthermore, the deponent has also annexed a bundle of photographs showing the ofiensive excavation/construction activities, which are being undertaken on the suit property. 6. The subject application was duly served on the plaintifi/respondent; the rest of the defendants/ respondents; and the rest of the interested parties. However, neither of the parties duly served filed any response/opposition to the application. 7. The Application came up for hearing on the 03.06.2026, whereupon learned counsel for the applicant confirmed to the court that the application had been duly served. Moreover, learned counsel posited that despite service, none of the adverse parties had filed a response to the application. To this end, learned counsel intimated to the court that same shall be adopting the grounds at the foot of the application and the supporting afidavit together with the annexures thereto. 8. In addition, learned counsel for the applicant contended that because the application has not been opposed, then the court should proceed to allow the application; find the 3rd interested party guilty of contempt; and to cite the named oficers of the 3rd interested party for contempt. 9. Though learned counsel for the 4th defendant was present, same opted not to make any submissions. Sufice it to state that the only submissions that were canvassed were by/ on behalf of the applicant. 10. Having reviewed the Notice of Motion Application [The Application] dated the 08.05.2026; the supporting afidavit thereto; the annextures attached thereto; and upon consideration of oral submissions by/on behalf of the applicant, two [2] key issues fall for determination. The issues are: Whether the fact that an application is not opposed entitles the applicant to the orders sought as of right or otherwise; and Whether the applicant has established/met the threshold for citation and punishment for contempt. 11. Regarding the first issue, it is worthy to recall and reiterate that learned counsel for the applicant posited that because the application had not been opposed by the adverse parties, then the court should proceed to deem the application as unopposed; and thereafter proceed to grant the orders sought. What I hear learned counsel to be stating is to the efiect that where an application is not opposed, then orders must issue as of right. Simply put, counsel insinuated that orders ought to issue mechanically and for the mere asking. 12. I wish to underscore that even where an application has not been opposed vide grounds of opposition, replying afidavit or a notice of preliminary objection [whichever is the case], the applicant is still obligated to persuade the court to grant the orders sought. In addition, the court is still enjoined to interrogate the application and to discern whether the application merits being granted in the eyes of the law. 13. I hasten to state that a court of law does not exercise discretion in a mechanical manner. The discretion is judicious in nature; and must therefore be exercised reasonably, objectively and above all, in accordance with the rule of law. Simply put, the jurisdiction is not for the mere asking. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3580/eng@2026-06-03 3

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14. In the case of Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, the Supreme Court of Kenya engaged itself with a situation where the replying afidavit filed on behalf of the respondent had neither been executed nor commissioned. Essentially, the apex court deemed the application as unopposed. 15. Nevertheless, the court stated thus: [10] Be that as it may, as a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter.We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court. 16. It sufices to underscore that a similar positions obtains in the case of Justus Ochieng versus the Attorney General [2026] KESC, where the Supreme Court reiterated; and re-afirmed the position that unopposed application, does not accrue orders as of rights. Instructively, there is no room for orders as prayed. 17. Flowing from the foregoing, there is no gainsaying that the application beforehand, cannot just be allowed merely because the adverse parties did not file any opposition. 18. The next issue for consideration is whether the applicant has established/met the threshold for citation and punishment for contempt. It is instructive to observe that the crux of the application before the court is to find and hold that the 3rd interested party is guilty of contempt. To this end, it was incumbent upon the applicant to prove the assertions of contempt to the requisite standard, namely; to the satisfaction of the Court. 19. In the case of Mututika versus Baharini Farm LIMITED [1985] Ekrl, the Court of Appeal addressed its judicial mind to the applicable standard in matters touching on and concerning contempt of court. The court highlighted that a citee facing contempt is likely to be sentenced to jail and thus lose his/ her liberty. In this regard, it was posited that contempt must be proven to the satisfaction of the court, namely; to the intermediate standard. 20. Has the applicant proven and discharged the requisite burden? The contention by the applicant is to the efiect that the 3rd interested party has since deployed heavy machinery on the suit property and commenced excavation and construction on the suit property, albeit in contravention of the orders of the court. To vindicate the said assertion, the applicant has annexed assorted photographs [annextures MAA1] to the supporting afidavit. The said annextures are photographs which are intended to persuade to the court to come to the conclusion that the 3rd interested party is indeed guilty of contempt. 21. It is imperative to highlight that the photographs which have been annexed [annexure MAA1] are not accompanied by the requisite electronic certificate in terms of Sections 106 B of the Evidence Act, Chapter 80 Laws of Kenya. Sufice it to state that the named provisions make it mandatory for every electronic evidence, whichever way generated, to be accompanied by an electronic certificate. 22. Sadly, the photographs which have been annexed by the applicant and which form the basis of the assertions concerning contempt, have not been accompanied with the electronic certificate. It https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3580/eng@2026-06-03 4

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then means that the photographs are only ornamental; cosmetic; and aesthetic in nature. The said photographs have no probative value in the eyes of the law. 23. In the case of County Assembly of Kisumu versus the Clerk, County Assembly Service Board and 9 others [2015] eKLR, the court of appeal considered the importance of an electronic certificate. [See paragraphs 65 to 67 of the said decision]. 24. The only source of evidence that was being relied upon by the applicant to prove/demonstrate contempt of court was the photographs. However, to the extent that the impugned photographs have no probative value, then it means that the application is made in vacuum. 25. Simply put, the application is not well grounded and does not meet the high standard for proving Contempt of Court. Conclusion; 26. Punishment for contempt is a deserving sentence, where it is proven that a party has disobeyed the orders of the court. However, before a court of law arrives at a conclusion that a citee is guilty of contempt, the court must be persuaded on the basis of cogent; compelling; and credible evidence. 27. In respect of the instant matter, the Applicant has failed to place before the court cogent and compelling evidence. Moreover, what has been placed before the court are just cosmetic photographs. The same have no meaning in the eyes of the law. Final orders: 28. 29. Consequently, and in the premises, the final orders that commend themselves to the court are: I. The Application dated 08.05.2026 be and is hereby Dismissed. II. Each party shall bear own costs of the Application. It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 3RD DAY OF JUNE , 2026. OGUTTU MBOYA, FCIArb;CPM[MTI-EA] JUDGE. In the presence of-: Court Assistant: Mukami Mr. Ahmed and Mr. A. K Mwangi for the Applicant. Mr. Mosota for the 4th Defendant/Respondent N/A for the Plaintifi/Respondent N/A for the rest of the Defendant N/A for the interested parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3580/eng@2026-06-03 5

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