Muchilwa & another (Representing the Estate of Sheldon Washington Sakwa Muchilwa - Deceased) v Mukite & 2 others (Environment and Land Case E062 of 2025) [2026] KEELC 4363 (KLR)

2. Upon issuance of the above order, the court is also asked to order the 2nd and 3rd respondents to compensate the plaintiffs for damages occasioned by the aforesaid disobedience, with costs. 3. The grounds are set out on the face of the application and in a supporting affidavit of David Amakhuma Muchilwa, sworn on 20/2/2026. It is deposed that the estate of the late Sheldon W. Sakwa Muchilwa has remained in occupation and possession of 71 acres out of L.R. No. 7127/4, upon the death of the deceased on 10/5/2010, which the initial parcel land title has since been converted to the Land Registration Act as Title Nos. Kiminini/Kiminini Block ORIGINAL COPY 4/9, 6, and 4, respectively. 4. It is deposed that on 19/12/2025, the court issued orders to preserve the status quo prevailing at the time of filing the suit until an inter partes hearing, with no interference with the applicants’ quiet possession of the suit land. 5. The plaintiffs depose that, as at 18/12/2025, when the suit was filed, the 71 acres were intact, the area under maize had been harvested, and the areas under pasture, napier and fencing were intact. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 2

page 2 of 38

6. The plaintiffs respondents depose were all that the served 2nd with and the 3rd court documents on 22/12/2025, while the 1st defendant was served on 23/12/2025, who, pursuant to the service, instructed counsel. The affidavit of service is attached as DAM-(1). 7. The plaintiffs depose that despite personal service of the court processes, the 2nd and 3rd defendants on the evening of 30/1/2026, and during the day on 31/1/2026, led a team of about 20 persons armed with crude weapons and invade part of the suit land, burned the pastures, the nappier grass, fence and also ploughed the area where maize had been harvest and the area that had pastures. ORIGINAL COPY 8. The plaintiffs depose that on 31/1/2026, some people with survey equipment came and planted some beacons within the suit land, leading to reports at both Kiungani Police Station and Kiminini DCI offices. 9. The plaintiffs defendants’ depose counsel that on 3/2/2026, the on record wrote a letter addressed to the defendants, warning them to refrain from interfering with the status quo as per the court orders dated 19/12/2025, or else they would expose themselves to contempt proceedings annexed hereto as DAM-(2). RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 3

page 3 of 38

10. The plaintiffs depose that on 9/2/2026, the 2nd and 3rd defendants, with a group of people, again invaded part of the suit land, uprooted and destroyed concrete fencing posts, and also removed the barbed wire from the concrete posts, which they also destroyed. The plaintiffs rely on photographs capturing the events of 31/1/2026 and 9/2/2026, showing the incidents, number, date, and location of damage in relation to the estate; a copy is attached as DMA-(3). 11. The plaintiffs depose that the disobedience was willful, deliberate, intentional, and should attract the punishment of this court, since court orders are not made in vain. ORIGINAL COPY 12. The application is opposed through the replying affidavit of 2/3/2026. Philip He Tabalya denies, Mukite, together sworn with the on 3 rd defendant, ignoring, disobeying, violating, or acting in contempt of any lawful order issued by the court. 13. The 2nd defendant deposes that as soon as he became aware of the orders issued on 19/12/2025, he instructed the firm of Wachi & Mumbi Advocates to come on record, which also advised them to strictly comply with the court orders as per the letter dated 3/2/2026, marked as PTM-(1). RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 4

page 4 of 38

14. The 2nd defendant deposes that they have at all material times complied with the legal advice and respected the authority and dignity of the court; hence, the allegations of contempt are false, malicious, and unsupported by credible evidence. 15. Further, the 2nd defendant deposes that the plaintiffs have deliberately failed to disclose to the court, material and critical development that parties subsequently entered into a consent dated 4/2/2026, duly settling the competing interlocutory application therein, pending before the court as per the annexure marked PTM-(2), which was ultimately adopted as an order of the court on 6/2/2026 as per annexure marked PTM-(3), inter ORIGINAL COPY alia seeking a joint site visit by government officers to ascertain the true occupation, developments and boundaries on the suit land. 16. It is deposed that the defendants received a letter dated 17/2/2016 from the County Surveyor, confirming commencement of preparatory steps towards execution of the court order attached herein as annexure marked PTM-(4), which letter also requested parties to facilitate the exercise by payment of the requisite government survey fees to enable implementation of the order, which they paid as per payment receipt attached as PTM-(5), and RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 5

page 5 of 38

thereafter submission of survey plan attached as PTM-(6). 17. The 2nd defendant deposes that the foregoing steps unmistakably confirm that the parties, including the defendants, have actively supported the sanctioned process, participated implementation rather of than the in and court- acting in disobedience of any court order as alleged by the plaintiffs. 18. The 2nd defendant deposes that in readiness for the said exercise, by a letter dated 18/2/2026, the Land Registrar Trans Nzoia, informed all relevant parties that the site visit and or status quo verification would take place on 25/2/2026 as per ORIGINAL COPY annexed copy marked PTM-(7), which could not take place as the Deputy Registrar of the court was unavailable leading to rescheduling for 3/3/2026, and therefore, until the Deputy Registrar verification is conducted and an official report filed, no party can legitimately claim breach of status quo or at all. 19. The 2nd defendant deposes that the determination of what constitutes status quo was reserved for an independent court-supervised verification exercise and not private interpretation by the plaintiffs as purported. The 2nd defendant deposes that there is no doubt that the present application is filed RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 6

page 6 of 38

prematurely and in bad faith, before implementation of the very consent mechanism agreed upon by the parties, by inviting the court to determine contempt establishment of proceedings the factual before the status quo contemplated in the consent order. 20. The 2nd defendant deposes that contempt proceedings, being criminal in nature, require strict proof beyond speculation, assumption, or contested factual claim, and in this case, the plaintiff is preempting the court-directed verification exercise. 21. The 2nd defendant deposes that the photographs annexed are misleading and deliberately presented out of context, for the activities depicted on the ORIGINAL COPY unauthenticated photos therein relate to development and land use activities undertaken long before issuance of the impugned consent order and before issuance of eight leases relating to all the property known as Kiminini/Kiminini/7127/4. 22. The 2nd defendant photographs do undertaken after deposes not that demonstrate the court the any said activity directions of 19/12/2025. 23. The 2nd defendant deposes that there was no breach as alleged after the subsequent consent order of 4/2/2026, as no recent ploughing, RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 burning, 7

page 7 of 38

destruction of fences, or invasion has been undertaken by him or under his authority as alleged. 24. The 2nd defendant deposes that the photographs were taken on or about 20/1/2026, during a ground verification exercise conducted by the County Survey officers, Trans Nzoia, under the supervision of Mr. Gabriel Wasike, in the presence of himself, the 3rd defendant, and Mr. James Mukwana Mayendo, with a view to documenting the existing conditions of the suit properties, specifically L.R. Nos. Kiminini/Kiminini/4/3-9, for the purpose of preparing a preliminary ground status, in the course of the administrative exercise, well before the ORIGINAL COPY adoption of the consent order dated 4/2/2026. 25. The 2nd defendant deposes that the ground status report prepared following the 20/1/2026 inspection was intended solely to establish the factual occupation and condition of the property then. The 2nd defendant photographs, deposes therefore, that the cannot report and do and not constitute evidence of any breach of court orders issued on 19/12/2025 or the consent order adopted on 6/2/2026; the same is attached as annexure marked PTM-(8). RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 8

page 8 of 38

26. The 2nd defendant deposes that, if contrary to facts stated by the applicant, any activity depicted in the photographs occurred before the consent order, the same was undertaken without knowledge of any status quo order as the said order had not yet been served on any parties and the plaintiffs had not given any prior notice of such alleged violation, hence he is deliberately misrepresenting the timelines to suggest disobedience where none exists. 27. The 2nd defendant deposes that the plaintiffs’ use of these photographs to allege contempt is therefore malicious, misleading, and designed to distort the factual matrix to pre-empt ORIGINAL COPY the court-directed verification exercise, manipulate evidence, and gain undue procedural advantage by falsely attributing activities undertaken outside the consent order period and before any knowledge of the existence of any status quo order. 28. The 2nd defendant deposes that in reality the defendants have at all material times acted in full compliance with court directions, have awaited lawful determination of the status quo through the proper court-sanctioned never engaged in mechanism, deliberate and have disobedience or interference with the suit property. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 9

page 9 of 38

29. The 2nd defendant deposes that the allegations by the plaintiffs are not only factually incorrect but also constitute an abuse of the court process, amounting to an attempt to transform a pending land dispute into unfounded contempt proceedings against the defendants. 30. Further, the 2nd defendant deposes that, other than the photographs, the plaintiff has failed to produce independent verifications linking the alleged damage to the defendants after the court orders were issued, and that there is no evidence or proof of the existence of a clear order, knowledge of the order, and deliberate and willful disobedience. 31. The 2nd defendant deposes that the defendants ORIGINAL COPY remain fully committed to at all times comply with court orders, participate in the Deputy Registrar’s status quo ascertainment site visit, and an expedited hearing and determination in the main suit, 32. The 2nd defendant deposes that the court’s authority is best preserved through adherence to the consent already adopted rather than punitive proceedings founded on disputed facts. 33. The application is also opposed by the 3rd defendant through a replying affidavit of Noah Mukiite Musamia, sworn on 2/4/2026. He admits that after RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 10

page 10 of 38

he was served with the pleadings and the court order, he received his lawyer’s letter dated 3/2/2026, annexed as NMM-(1), and thereafter, the 2nd defendant filed an application dated 2/2/2026, which was later compromised, and a consent was recorded by the parties on 4/2/2026. 34. The 3rd defendant denies disobeying any court order, terming the application as unfounded, malicious, and based on unsupported credible evidence. 35. The 3rd defendant reiterates that the contents of the affidavit of the 2nd defendant, as to the events after the adoption of the court order dated 5/2/2026, are attached as annexures marked NMM-(3), (4), (5), ORIGINAL COPY (6), (7), and (8) in the 2nd defendant’s replying affidavit. 36. The plaintiffs rely on written submissions dated 28/2/2026 and 4/5/2026. It is submitted that personal service of the court orders issued on 19/12/2025 was done on 22/12/2025, to which the defendants filed an application dated 2/2/2025, seeking to set aside the orders, which was subsequently compromised. 37. The plaintiffs submit that the disobedience was intentional, calculated, and contemptuous, and that the application meets the threshold since there is RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 11

page 11 of 38

an existing court order, personal service of the order, and the willful and intentional disobedience of the same by the 2nd and 3rd defendants to warrant the reliefs sought. 38. Reliance is placed on the Commission Teachers Service -vs- Kenya National Union of Teachers & Others [2013] eKLR and Fred Matiangi, Interior Cabinet and Secretary, Co-ordination Ministry of of National Government -vs- Miguna & Others [2018], Shimmers Plaza Ltd -vs- National Bank of (K) Ltd & Another Civil Appeal No. 33 of 2012, Basil Criticos -vs- Attorney General [2012] eKLR, Hadkisnon -vs- Hadkinson [1952] ALLER ORIGINAL COPY 567, Katsuri Ltd -vs- Kapurchand Deport Shar [2016] eKLR and Kenya Revenue Authority - vs- Chief Magistrate Court Migori and M. Juma Achar (IP) [2021] eKLR. 39. The plaintiffs submit that the evidence of DAM-(1) shows that there was proper service of the order on 22/12/2025, which the 2nd defendant has also admitted in the replying affidavit sworn on 2/3/2026. The plaintiffs submit that despite the service, the 2nd and 3rd defendants visited the land on 30/1/2026 and 31/6/2026, leading to a letter from their own advocate attached as DAM-(2). RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 12

page 12 of 38

40. The plaintiffs submit that the photographs numbers 1 and 2 clearly capture the image of the 3 rd defendant in a blue shirt and a hat, while photographs numbers 5 and 10 show tractors ploughing the harvested field. Equally, the plaintiffs submit that photographs numbers 7-23 show the damage occasioned by fire, while photographs numbers 26 and 27 show the damage and uprooted concrete posts. The plaintiffs submit that the OB report of 9/2/2026 is also included on page 17 of the report. 41. The plaintiff submits that it should be noted that the consent order dated 4/2/2026, which the court subsequently adopted at paragraphs (1) and (111), ORIGINAL COPY clearly states that the orders of status quo issued on 19/12/2025 were extended. Indeed, upon adoption of the consent, the status quo order was as of 19/12/2025, and not as of 4/2/2026 as contended by the defendants, which remained as extended. 42. The plaintiffs submit that the allegation that the exhibited photographs were taken on 20/1/2026 during the ground verification exercise conducted by the County Surveyor’s office is clearly false, for it was actually scheduled for dates in February RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 13

page 13 of 38

2026, after the adoption of the consent dated 4/2/2026. 43. In the 2nd application dated 8/4/2026, the court is asked to cite, find, and punish the plaintiffs for contempt of court orders issued on 19/12/2026 and subsequently extended by way of a consent order dated 4/2/2026 and further on 2/3/2026, all which collectively and in clear terms directed that the status quo prevailing at the time of filing the suit be maintained, penning further directions of the court. 44. The court is also further asked to issue an order compelling the plaintiffs to immediately cease all acts of cultivation, tilling, or interference with the suit property, t issue an order for restoration of the ORIGINAL COPY suit property to the status quo ante, as at the filing of the suit and lastly, an order that the OCS Kiungani Police Station be directed to supervise and enforce compliance with the court order. 45. The reasons are contained on the face of the application and in a supporting affidavit of Philip Tavalia Mukite, sworn on 8/4/2026. 46. The 2nd defendant deposes that this suit concerns the ownership, occupation, and use of the suit land. The 2nd defendant acknowledges the filing of a notice of motion on 18/12/2025 by the plaintiff and the issuance of interim orders of status quo RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 14

page 14 of 38

attached as PTM-(1), which were also extended on 4/2/2026 and on 2/3/2026, by consent of the parties, a copy attached as PTM-(2). 47. The 2nd defendant deposes that the said orders were clear, unambiguous, and binding on all parties to this suit, including the plaintiffs. The 2 nd defendant deposes that while aware of the said orders, the plaintiffs blatantly, willfully and deliberately disobeyed them on 18/3/2026 and 19/3/2026, by unlawfully entering the suit land, commencing and continuing tilling and cultivation, activities of more than 7 acres of the suit land, interfering with the quiet possession and condition of the land, and altering the physical state and character of the land, ORIGINAL COPY as per photos attached as PTM-3(1) and (11). 48. Further, the 2nd defendant deposes that on 7/4/2026, he reported the trespass and unlawful activities to Kiungani Police Station as per OB entry and report marked PTM-(4). 49. The 2nd defendant deposes that the said acts are in direct contravention of the status quo orders issued by the court, were deliberate and calculated to defeat the purpose and effect of the court order, and to gain an unfair advantage before the determination of this suit. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 15

page 15 of 38

50. The 2nd defendant deposes that the continued acts of cultivation and interference are causing and are likely to cause irreparable damage to the suit property, permanent alteration of the land’s condition, prejudice to the property and possessory interests, and the creation of a situation where the court orders are rendered nugatory. 51. The application is opposed by a replying affidavit of David Amukhuma Muchilwa, sworn on 17/4/2026. It is deposed that at the time of filing the suit and issuance of the order dated 19/12/2025, the plaintiffs were in quiet possession of the land, which they had occupied and utilized for well over 30 years. ORIGINAL COPY 52. The plaintiffs depose that the court order of 19/12/2025 did not restrain them from occupying or cultivating their land; otherwise, it is the defendants who were restrained from interfering with the plaintiffs’ occupation and use of the land. The plaintiffs depose that the order of 19/12/2025 was by consent and extended as per Clause No. 1(iii) of the consent order. 53. The plaintiffs depose that the consent order equally did not bar or restrain the plaintiffs from occupying or cultivating the 71 acres. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 16

page 16 of 38

54. The plaintiffs depose that the defendants, at the time they filed the application dated 8/4/2026, had no counterclaim on record. 55. The plaintiffs admit having ploughed part of the land, which comprises 71 acres, as per paragraph 11 of the replying affidavit, which in no way shows disobedience of a court order. 56. In the 3rd application, the court is asked to disqualify the law firm of Kiarie & Co. Advocates from representing the plaintiffs in this matter and to strike out all pleadings filed herein by the said law firm on account of a conflict of interest. 57. Contempt of court is governed by Section 5 of the Judicature Act, Order 40 Rule 3 of the Civil ORIGINAL COPY Procedure Rules, and Section 63 of the Civil Procedure Act. Order 40 Rule 3(1) provides that in cases of disobedience, or breach of any such term, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such property attached to be sold, and out of the proceeds the court may award such compensation as it thinks fit to be paid to the party entitled thereto. 58. Section 29 of the Environment and Land Court Act provides that any person who refuses, fails, or RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 17

page 17 of 38

neglects to obey an order or direction of the court given under this Act commits an offence and shall, on conviction, be liable to a fine not exceeding Kshs.20,000,000/=, or imprisonment for a term not exceeding two years, or both. 59. According to Practice Directions No. 28 (9) and (33) of Gazette Notice No. 5178 of 2014, the court where appropriate may issue orders for maintenance of status quo until a matter is fully heard and finally determined and or during interpartes hearing, if any interlocutory application, where appropriate encourage parties to agree to maintain the status quo and if they cannot agree considering the nature of the case or hearing both ORIGINAL COPY side, exercise its discretion to order for status quo, pending hearing and determination of the suit bearing in mind the overriding interest of justice. 60. Practice Direction No. 43 relates to sanctions for non-compliance with the Civil Procedure Rules, orders, and directions of the court. They include imposition of costs, fines, striking out of pleadings, dismissal of the suit, or meting out punishment prescribed by the Environment and Land Court Acts, or any other statute, bearing in mind the overriding interest of justice. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 18

page 18 of 38

61. Status quo means a direction to keep things or the state of affairs that is the subject of a legal dispute until a decision is made. The court is being asked by the plaintiffs to find the 2nd and 3rd defendants guilty of contempt of court. 62. At the same time, the 2 nd defendant has also brought a similar application seeking to have the plaintiffs cited, convicted, and punished for contempt of court. Both parties agree that there was a court order made on 19/12/2025, which they later extended by consent, which is still subsisting to date. 63. In Kioko & Others -vs- Muli & Others Civil Appeal No. 528 of 2019 [2026] KECA 693 [KLR] ORIGINAL COPY (25th March 2026) (Judgment), the court held that obedience to court orders is not optional and disobedience thereof has repercussions, for it seeks to undermine the rule of law. The court held that the power to punish for contempt of court is inherent and essential in maintaining the authority and dignity of the court. Contemnors are therefore out to demean the integrity of the court. See Republic -vs- Ahmed Abdul Mohamed [2015] eKLR. 64. In Hadkisnon -vs- Hadkinson (supra), the court held that a party who knows of an order, whether RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 19

page 19 of 38

null or valid, regular or irregular, cannot be permitted to disobey it. 65. In Kenya Revenue Authority -vs- Chief Magistrate Court, Migori and M. Juma Achar (IP) (supra), the court must be obeyed for the court’s dignity and authority to be protected, even if the party believes that the court order is irregular or invalid. 66. The ingredients for contempt of court were set out in Wekesa & Others -vs- Munialo [2025] KECA 679 [KLR], Mutitika -vs- Baharini Farm Ltd [1986] KLR 229, and in Shimmers Plaza Ltd -vsNational Bank of (K) Ltd 92025] KECA 945 ORIGINAL COPY [KLR]. The order must be clear and unambiguous. There must be knowledge of the terms and conditions of the order, and lastly, willful and deliberate disobedience of the same. 67. In Basil Criticos -vs- Attorney General (supra), the court held that the law has changed to mean that knowledge of the order supersedes personal service and that where a party clearly acts and shows that he had knowledge of a court order, the strict requirements of personal service of the order are rendered unnecessary. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 20

page 20 of 38

68. In Teachers Service Commission -vs- Kenya National Union of Teachers & Others [2013] eKLR, the court held that willful disobedience of a court order strikes at the very heart of the rule of law and must be punished. 69. In Fred Matiangi, Cabinet Secretary, Ministry of Interior and Co-ordination of National Government -vs- Miguna & Others [2018], the court said that when court orders are issued, they are not mere suggestions or plans to the persons to whom they are directed. That court orders are issued ex cathedra, are compulsive, peremptory, and expressly binding. ORIGINAL COPY 70. The court in the Fred Matiangi (supra) emphasises that it is not for any party, be high or low, weak or mighty, and quite regardless of his standing in society, to decide whether or not to obey, to choose which to obey, and which to ignore, or to negotiate the manner of his compliance. 71. The court held that, as much, all courts will deal firmly and decisively with any party who designs to disobey court orders and will do so not only to preserve its own authority and dignity but also to ensure and demonstrate that the constitutional edicts of equality under the law and the upholding RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 21

page 21 of 38

of the rule of law are not mere platitudes but present realities. 72. On how to conduct contempt proceedings, in Githinga & Others -vs- Kiru Tea Factory Co. Ltd [2019] [2023] KESC 41 (Judgment), the Supreme Court held that in contempt proceedings, the liberty of the subject cited for contempt is at stake, that courts possess inherent power to enforce compliance with lawful orders through sanction which are imposed through contempt of court and in enforcing compliance with lawful court orders, the procedure to cite, convert and the procedure to punish for contempt must be fair, reasonable, and be such that a full opportunity is given to the ORIGINAL COPY alleged contemnor to defend himself or herself. Since the issue of contempt belittles and undermines the powers, authority, and dignity of the court. 73. Therefore, an applicant, other than knowledge of the order, must establish that the actual acts of contempt took place in utter willful and flagrant disregard of a validly existing order, as held in Titus Musyoki Nzioka -vs- John Kimanthi Muingi & Another [2013] eKLR. 74. In the two applications herein, each of the applicants must prove that the terms of the order RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 22

page 22 of 38

were clear and unambiguous, the respondents knew or were aware of the terms, and lastly, that they failed, refused, or neglected to obey the same as held in Katsuri Limited -vs- Kapurchand Depar Shah [2016] eKLR. 75. Applying the foregoing case law to the instant suit, it is not disputed that this court was approached by the plaintiffs through a plaint accompanied by a notice of motion dated 18/1/2025, seeking temporary orders of injunction. The court issued orders to maintain the status quo as of 18/12/2026. The plaint was yet to be challenged by way of a defence as of 5/5/2026. It sought to restrain the defendants from interfering with the ORIGINAL COPY plaintiffs’ use, occupation, and possession of 71 acres of land as occupied for over 30 years, based on sale agreements dated 8/7/1992 for 27 acres, exchange transactions approved by Saboti/Kwanza Land Control Board consents of 5/12/1991 and 22/3/1996, and another agreement for 10 acres dated 28/2/1992, all totaling to 71 acres to which the estate of the deceased was in physical occupation of. 76. Based on the material before the court, the court exercised its discretion and granted orders of maintenance of status quo as of the filing of the RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 23

page 23 of 38

suit, with an order that the plaintiffs’ quiet possession of the land should not be interfered with. The 2nd defendant filed a replying affidavit sworn on 2/2/2026 to that application. 77. Following the said orders in an application dated 2/2/2026, the 2nd defendant sought to have the orders dated 19/12/2026 set aside, varied, or vacated. In paragraphs 5, 6, 12, 13, 16, 17, and 18 of the supporting affidavit, the 2 nd defendant admits the existence, contents, and implications of the said order. 78. The court notes that it is admitted by the 2 nd defendant that the title deed attached at PMT-(4) to his supporting affidavit was not in existence as of ORIGINAL COPY 19/12/2025, when the impugned orders were made. Therefore, the status quo must be contextual in the circumstances obtaining at the time the orders were made in relation to who was in occupation, possession, and use of the land. 79. It is trite law that overriding interests subsist with the land and need not be noted in the register. The plaintiff is advancing a claim of beneficial interest arising out of aborted sale agreements, which the defendants feign ignorance of or allege that they are of no legal consequence. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 24

page 24 of 38

80. On the other hand, the plaintiffs aver that out of those sale agreements, they were put in use, possession, and occupation of the land when the sale agreements were consummated before the titles to the suit property changed hands; hence, the titles held by the defendants are subject to overriding interests. 81. The plaintiffs had filed the suit accompanied by an application seeking a temporary reprieve to forestall eviction, which the court acceded to and ordered the maintenance of the status quo ante as of 18/12/2025. The import of the order meant that the prevailing status on the ground at the time was to remain until an inter partes hearing. While aware ORIGINAL COPY of the said orders, the defendants on 4/2/2026 appended a signature to a consent through their lawyers, whose Clause No. 1(iii) in clear and unambiguous words says, “Meanwhile, the orders of status quo on 18/12/2025 shall be extended.” 82. So what baffles me in the two applications for contempt and their respective replies from the defendants is why would the defendants speak from both sides of their mouth to allege in the replying affidavit to the contempt of court application by the plaintiffs that there were no such orders and if they were, they were not aware of then and if at all they RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 25

page 25 of 38

were aware of them, they did not disobey any and that all what the applicant in the 1 st application is alleging is a figment of his imagination, and that all what they are interested in the site visiting by the Deputy Registrar to ascertain the status quo as of 3/2/2026. 83. In the 2nd application, the 2nd defendant has taken a 360-degree about-turn to now say that indeed there was a court order issued on 19/12/2025, which had profound implications, not only for the defendants, but also for the plaintiffs, which the plaintiffs have breached and should be cited, convicted, and punished for contempt of court. Strangely, the 2 nd defendant is also the deponent to the supporting ORIGINAL COPY affidavit in the application dated 2/2/2026. 84. Status quo basically means to keep things as they are until a decision is made. Status quo has been defined as a preventive measure aimed at avoiding irreversible changes that could prejudice the rights of the parties during litigation. In sociology, it means the way things are currently in terms of sound structures or values. It prevents either party from taking unfair advantage during the trial. It keeps the situation stable and unchanged until the court gives its final decision. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 26

page 26 of 38

85. In Bia Tosha Distributors Ltd -vs- Kenya Breweries Ltd and Others, Petition No. 15 of 2020, the court cited Republic -vs- Ahmed Abulfadhi Mohamed & Another [2018] eKLR, that a contemnor not only demeans the integrity and authority of courts but also deprives the rule of law. 86. Further, the court cited Republic -vs- Ahmed Abulfadhi Mohamed & Another [2019] eKLR, that an act in contempt constitutes an affront to judicial authority, that the court punish such conduct to not only vindicate the courts’ authority but also to uphold honourable conduct among advocates and lastly, to safeguard its processes for ORIGINAL COPY assuring compliance to sustain the rule of law and the administration of justice. 87. The court said that when an issue of contempt of court arises, it should be prioritized and determined in limine as soon as it arises, since the authority of the courts over a matter is an ongoing process that should be safeguarded during and after the court process. The court said that the effect of taking the court process and, in particular, court orders lightly, even in the face of the court, is likely to encourage descent into anarchy and loss of confidence in the court process. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 27

page 27 of 38

88. The Supreme Court has cautioned that courts must be careful when issuing conservatory and other interim reliefs to parties, and that on issuance of status quo orders, it is only practical that the same be accompanied by the descriptive particulars of the exact position that the court seeks to preserve to avoid a situation where each party is left to its own perception as to what the court meant, which may eventually erode the very essence of the court’s intervention and subject the court to undesirable controversy regarding compliance with the said order. 89. In Saroj K. Shah -vs- Naran Mani Patel & Others [2015] eKLR, that an order of maintenance ORIGINAL COPY of status quo can mean everything and nothing unless clearly spelt out in precise, and unambiguous terms what the status at a particular point in time is, which if vague, or imprecise may be a recipe for frustration and embarrassment to the court as well as a mean to embolden individual so mended to do that which is intended to be prohibited or injuncted to secure escape because status quo was never spelt out clearly. 90. The 2nd and 3rd defendants have turned around and are approbating and reprobating at the same time. In so doing, they have exposed themselves. The RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 28

page 28 of 38

doctrine of estoppel has caught up with the defendants. They mischievously seek to manifest in their words, deeds, and conduct what the order of the status quo meant to them and its implications as at the time they were issued. It does not need rocket science to see that, after the title deeds they hold, which were issued to the defendants and the beneficiaries to the estate of the late Joseph Musamia Mukite, during the subsistence of the orders emboldened them to ignore the court orders. 91. The court is left to wonder why the defendant's own lawyer then wrote a warning letter, dated 3/2/2026, in bold and clear terms on the consequences of interfering with the court order on the eve of the ORIGINAL COPY court appearance. 92. The said conduct or acts soon after this led to the application filed on 2/3/2026 to set aside, vacate, and vary the orders. Already, the 2 nd and 3rd defendants knew that they had moved to the suit land with the County Surveyor to do acts against the existing ingenuously, court the orders. supporting Deliberately and affidavit the of application dated 2/2/2026 failed to disclose the entry into and preparation of the ground status report dated 21/1/2026, attached as PTM-(8). RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 29

page 29 of 38

93. If at all the status quo was as per that report and such a report was already in existence, it defies logic why the defendants would then consent to the Deputy Registrar of this court, who is not an expert in such matters, to visit the locus in quo for verification. No wonder the defendants urge the court to find that the status quo as of 19/12/2025 was different from the status quo as of 3/2/2026. 94. Needless to say, if we were to go by that report, the County Land Administrator would confirm that the parcel of land intended for the listed beneficiaries was occupied by multiple individuals claiming ownership through a prior purchaser, which group is where the plaintiffs lie or belong. ORIGINAL COPY 95. The report corroborates the defendants as attendees whose images are captured in the photographs attached to the supporting affidavit for contempt of court. Similarly, the report dated 21/1/2026 by the County Surveyor, Mr. Gabriel Wasike, also confirms that the land is fully settled. 96. One wonders why the defendant, as the only person present during the site visit, did not show their footprints of use, occupation, and possession at the material time, which then they would say is the status quo, favouring them, which the plaintiffs misled the court to issue under-serving orders, or to RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 30

page 30 of 38

now use the same orders to find that they were covered by the same just like the plaintiffs. 97. The many contradictory affidavits the 2nd and 3rd defendants have sworn herein leave no doubt in my mind that they knew of the order as of 22/12/2025. If at all, they had not been served with the order, the easiest thing could have been to call for the process server for cross-examination. Therefore, the issue of service of the order on 22/12/2025 is not contested. 98. The other aspect is that while aware of the order, the defendants sought and obtained titles to the suit property and embarked on a subdivision exercise of the suit land, using the services of the ORIGINAL COPY County Surveyor, Mr. Gabriel Wasike. 99. The 2nd and 3rd defendants do not deny visiting the site on 20/1/2026 during the pendency of the order and conducting acts inconsistent with the order regarding interference with the plaintiffs’ quiet possession of the land, contrary to the order. 100. These acts constitute willful and deliberate disobedience of the court order. The 2 nd and 3rd defendants unsuccessfully attempted to set aside, vary, and vacate the said orders. Instead, the lawyer for the defendants compromised application and that plaintiffs. of the RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 his Ideally, 31

page 31 of 38

confirming the existence, binding nature, and validity of the order as of the date of filing of the suit. It was not a deliberate error or an indication of 18/12/2025 in the consent dated 4/2/2026, which this court endorsed on 4/2/2026, making it an order of court that was extracted soon thereafter. 101. None of the defendants or their lawyers on record came back to court to successfully seek a review or setting aside of the said order. Furthermore, the consent order effectively bound the defendants from 18/12/2025 to date. Nothing could have been easier than to tell the court that, indeed, as of 18/12/2025, when the order was made, all the defendants and the plaintiffs were coORIGINAL COPY sharing the suit premises in relation to the 71 acres. 102. A consent order can only be set aside on the same grounds as would justify the setting aside of a contract, as held in Atogo -vs- Wamboye & 6 Others Civil Appeal No. 53 of 2019 [2025] KECA 327 [KLR]. This court was urged by the parties to record the consent as drafted and signed by their respective advocates in the presence of the parties, in open court, which effectively had its validity confirmed as of 18/12/2025. RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 32

page 32 of 38

103. No single averment has been made that the consent was procured through fraud, illegality, undue influence, or is against public policy. As held in Geoffrey Asanyo & Others -vs- Attorney General, Petition No 8 of 2019, adoption of a consent by a court is a process in the course of which a court discharges the duty of evaluating the clarity of the consent placed before it by the parties and giving direction on the manner of adoption, to circumvent the risk of an unlawful order. 104. The defendants have placed heavy emphasis on why the court should deal with the question of contempt instead of allowing implement the consent. ORIGINAL COPY them to fully The answer lies with Bia Tosha (supra). Contempt of court has to be dealt with in limine before anything else. The less said of the mischief by the defendants in blowing hot and cold at the same time, the better. The court finds the 1st application merited while the 2nd one is unmerited. 105. Coming to the 3rd application, the defendants allege that M/S Kiarie & Co. Advocates, now on record, were previously their lawyers in a Probate Case, hence are conflicted in this matter. The jurisdiction of the Probate Court is limited to determining the assets of the deceased, RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 the 33

page 33 of 38

survivors of the deceased, and the beneficiaries, and finally the distribution of the estate as held in Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR. Matters relating to claims of third parties to the estate fall under the court by dint of Article 162(2) of the Constitution. 106. In Law Society of New South Wales -vs- Harvey [1976] 2 NSWLR 15, the court said that where there is any conflict between the interests of the client and that of a solicitor, it is the duty of the solicitor to act in perfect good faith and to make full disclosure of his interest; the court may introduce unless it is satisfied that there is no risk of disclosure. The risk must be real, and not merely ORIGINAL COPY factual or theoretical. It need not be substantial as held in Prince Jefri Bolkiah -vs- KPMG (a firm) [1999] 2 AC 222. 107. In King Woolen Mills Ltd -vs- Kaplan & Stratton Advocates (1990-1994) EA 244, the court held that the fiduciary relation created by the retainer between client and an advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without the client’s consent, and that fiduciary relax exists even RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 34

page 34 of 38

after the conclusion of the matter for which he retainer was created. 108. Section 134 of the Evidence Act bars an advocate from making certain disclosures, on any communication made to him, the contents or condition of any document with which he has become acquainted, and advice given by him to his client. The restriction is not absolute. 109. Section 136 of the Evidence Act prevents an advocate from being compelled to disclose a confidential conversation, unless it appears necessary to the court. Conflict of interest is covered in paragraphs 96, 97, and 99 of the Law Society of Kenya Code of Standards of Professional ORIGINAL COPY Practice & Ethical Conduct. It includes where the advocate's representation of the client will be materially and adversely affected by the advocate's own interests or duties to another client, to a former client, or to a third party. 110. Rule 9 of the Advocates Practice Rules under the Advocates Act Cap 16 also prohibits an advocate from acting in a matter where, as is apparent, he may be called as a witness. 111. In British-American Investment Co. (K) Ltd -vs- Njomaithu Investment Ltd & Another, HCCC Milimani No. 570 of 2011, the court said RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 35

page 35 of 38

that where a party asserts that a conflict of interest exists, he must provide sufficient evidence to demonstrate the existence of the same, and the prejudice to be suffered if such an advocate continues to act for that party. 112. The court said that mere apprehension, suspicion, or fear of prejudice cannot be a basis to stop an advocate from acting on behalf of a party. 113. In Serve in Love Sila Trust -vs- David Kipsang Kipyego & Others [2017] KEELC 3632 KLR, the court cited Rakusen -vs- Ellis, Munday & Clarke [1912] 1 Ch. 831, that the court must be satisfied that real mischief and real prejudice will, in all human probability result if the solicitor is allowed ORIGINAL COPY to act, otherwise, as a general rule, courts will not interfere unless there be a case where mischief is rightly anticipated. 114. In William Audi Ododa & another -vs- John Yier & Another COA Civil Appl. NAI 360 of 2004, the court said that it is not the business of the court to tell litigants which advocate should and should not act in a particular matter, unless it is shown that it would not be in the interest of justice if a particular advocate is allowed to act in a matter. 115. The right to legal representation is provided under Articles 48, 50(1), and 159(2)(a) of the RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 36

page 36 of 38

Constitution. In Dorothy Seyanoi Moschioni -vsAndrew Stuart & Another [2014] eKLR, the court said that in an application for disqualification of counsel, the court must dig deeply to the thrust of the essential core of the grounds advocated for disqualification, look, look at the real issues in dispute, the facts of the case and place all that on the scale of the threshold of the law applicable. 116. Looking at the facts in this matter, the dispute before the court is on an alleged beneficial interest of the plaintiffs over the suit properties. 117. The material placed before the court falls short of demonstrating the alleged conflict of interest or the potential disclosure of confidential ORIGINAL COPY documents, facts, or materials by the plaintiffs’ law firm. The court finds the application lacking merit. It is dismissed with no order as to costs. 118. The 2nd and 3rd defendants are hereby put on mitigation before sentencing. 119. Orders accordingly. Ruling dated, signed and delivered via Microsoft Teams/Open Court at Kitale on this 8th day of July 2026. In the presence of: Mr. Kiarie for the plaintff present Mr. Kimani Wachira for the 2nd defendant present RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 37

page 37 of 38

Mr. Pukah for the 1st defendant present HON. C.K. NZILI JUDGE, ELC KITALE. ORIGINAL COPY RULING: KITALE ELC NO. E062 OF 2025 - D.O.D. – 08/07/2026 38

page 38 of 38