Igweta (Suing as the Legal Representative of the Estate of M’Ajogi M’Nchau alias Nchau) & another v Grace & another (Suing as the Legal Representative of the Estate of M'Ajogi M'Nchau alias Mchau) (Environment and Land Case E003 of 2023) [2026] KEELC 5137 (KLR)

v Kenya National Union of Teachers & 2 others [2013] KEELRC 656 (KLR). The court [per Lady Justice Linet Ndolo – Judge as she then was] stated thus: “ A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.” 3. Before venturing to interrogate the legal implications attendant to court orders, it is imperative to put the facts of the matter into context. The application before the court is the one dated the 28.02.2026. The application has been brought pursuant to the provisions of Section 5 of the Judicature Act, Chapter 8 Laws of Kenya; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya. 4. The reliefs sought vide the application are: i. ……………………………………………………………………..……. spent. ii. This Honourable court be pleased to cite the Plaintiffs/Respondents for contempt of court and willful disobedience of the court orders of this honorable court given on 12.06.2024. Page 2 of 17

page 2 of 17

iii. This honourable court pleased to summon the Plaintiffs/Respondents to appear before this Honourable Court and show caused why they should not be in committed to civil jail for contempt of court. iv. Upon being cited, the Respondents be punished for contempt of court by committal to civil jail for six months or such periods as this Honourable Court may deem fit and just, or by such other sanction as the court may deem appropriate. v. This Honourable court be pleased to order the Respondents do purge the contempt by complying with orders of this Honourable Court given on 12th June, 2024 and vacate the suit land herein LR No. Nyaki/Mulathankari.9. vi. This Honourable court be pleased to order the remains of Tabitha Kinaitore M’Nyiruu interred on the suit land LR No. Nyaki/Mulathankari.9 in willful disobedience of the orders of this court honourable court be exhumed to purge the order of the Honourable Court. vii. The officer Commanding Station [OCS] Giaki Police Station be ordered to assist in the enforcement of the orders of this court. viii. Costs of this application be provided for. 5. The application is premised on various grounds. The grounds are: The Plaintiffs/Respondents’ filed the instant suit seeking declaration of customary trust; the defendants/applicants duly entered appearance and Page 3 of 17

page 3 of 17

filed a statement of defence and counter claim; the suit between the parties was heard and determined; the court rendered a judgment on the 12.06.2024; the court dismissed the plaintiffs’ suit; the court entered judgment in terms of the counter claim; the plaintiffs’ were directed, inter alia, to vacate the suit land or be evicted; the plaintiffs filed an appeal before the court of appeal; Contemporaneously, the plaintiffs’ also filed an application before the court of the appeal seeking stay of the execution of the judgment or the decree of the court; and the application was dismissed vide ruling rendered on the 23.05.2025. 6. Additionally, the Applicants have posited thus: The plaintiffs’ were and have been aware of the judgment; the plaintiffs have failed to comply with and or abide by the terms of the judgment; the plaintiffs have remained in occupation of the suit property; the plaintiffs have equally failed to exhume the remains of George Thuranira M’Nyiruu [deceased]; the plaintiffs have equally interred the body of Tabitha Kanaitore M’Nyiruu [Deceased] on the suit property; the actions of the plaintiffs constitute contempt of Court; and sufficient basis has been established to warrant citation and punishment of the plaintiffs. 7. The Plaintiffs/ Respondents filed a replying affidavit sworn on the 07.07.2026. The plaintiffs have opposed the subject application. Pertinently, the deponent of the replying affidavit has posited thus: The Page 4 of 17

page 4 of 17

plaintiffs were aggrieved with the judgment and the decree of the court; the plaintiffs filed a Notice of Appeal; the appeal is still pending before the court of appeal. In addition, the deponent has averred that the impugned decree of the court has not been served upon the plaintiffs; the failure to serve the decree negates the subject application; and the application before the court is premature. 8. The subject application came up for directions on various dates, including the 08.07.2026. The parties sought to file and exchange written submissions. The court thereafter issued directions. The directions were: The applicants+’ shall file and serve written submissions within 7 days from the date of the directions; the respondents shall file and serve written submissions within 7 days from the date of the submissions; and the applicant shall be at liberty to file rejoinder submissions [if any] within 5 days. The applicants filed written submissions dated the 13.07.2026 and wherein same have canvassed one key issue. The issue is: Whether the Plaintiffs/Respondents’ have disobeyed the judgment and the decree of the court issued on the 12.06.2024 or otherwise. 9. The respondents filed written submissions dated the 22.07.2026. The respondents have equally canvassed one key issue. The issue is: Whether the subject application is premature; and misconceived for want of service of the impugned decree upon the Respondents. Page 5 of 17

page 5 of 17

10.Learned counsel for the respondents has submitted that it was incumbent upon the Applicants’ to extract and serve the decree of the court. It has been submitted that the applicants’ have neither extracted nor served the decree. In addition, it has been posited that the applicants have neither exhibited any affidavit of service, nor averred to service of the impugned decree. 11.In the absence of service of the decree, it has been submitted that the current application is therefore premature and incompetent. The court has been invited to strike out the application; and to award costs to the respondents. 12.Learned counsel for the Respondents has thereafter relied on two decisions. The decisions are: Nyamodi Ochieng Nyamogo and another versus Kenya Posts and Telecommunication Corporation [1994] KECA; and Republic versus Nairobi City County; Ojienda and Company Advocates [Exparte Applicant] [2024] KEHC 3734, respectively. 13.Having reviewed the application; the supporting affidavit attached thereto; the replying affidavit sworn in opposition thereto; and upon consideration of the written submissions by /on behalf of the parties, two [2] key issues crystalize for determination. The issues are: Whether the applicants have established the threshold for contempt; and what reliefs [if any] ought to be granted. Page 6 of 17

page 6 of 17

14.Regarding the first issue, it is common ground that any claimant seeking to pursue contempt proceedings, the applicants not excepted, are obligated to meet certain parameters. The parameters and elements to be established are: i. Existence of a lawful court order/decree. ii. The court order must be clear and devoid of ambiguity. iii. The court order must command the doing or abstinence from doing a designated act. iv. Service of the court order. v. In lieu of service, proof of knowledge of the order. vi. Actions or omissions denoting contempt. 15.With regard to the subject matter, there is no gainsaying that the suit between the parties was heard and determined. This court [differently constituted] delivered a judgment on the 12.06.2024. The court dismissed the suit by/on behalf of the respondents herein. On the contrary, the court duly entered judgment in favour of the applicants. 16.The terms of the Judgment were crystal clear. The court directed thus: i. An order of eviction be and is hereby issued against the plaintiffs and their families from Nyaki/Mulathankari/9 [the Suit Property]. Page 7 of 17 LR. No.

page 7 of 17

ii. An order of exhumation be and is hereby issued to exhume the body of George Thuranira M’Nyiruu [the Deceased] from the suit land. iii. There be and is hereby issued an order of permanent injunction restraining the plaintiffs by themselves, families, servants and or agents from entering upon disposing of, subdividing and or any other way interfering with the defendants’ rights to the suit property. iv. Costs of the counter claim. 17.The judgment of the court is clearly shown to have been delivered in the presence of the counsel for the advocates. Nevertheless, it is worth noting that upon the delivery of the judgment, the plaintiffs, who are the respondents herein, filed a notice of appeal and thereafter filed an application for stay of execution before the court of appeal. It suffices to state that the application for stay of execution was dully heard and disposed of vide ruling of the court of appeal delivered on the 23.05.2025. Notably, the application was dismissed. 18.From the foregoing, it is apparent that the respondents herein have been privy to and knowledgeable of the terms of the court order. The respondents endeavored to stay the implementation of the decree. However, the endeavors by the respondents’ were unsuccessful. Page 8 of 17

page 8 of 17

19.One would have expected the respondents, by virtue of being conscientious citizens, to vacate the suit property in obedience to the court orders. Instead, the respondents have remained in situ. The respondents appear to be playing lottery with the due process of the court. The respondents are now pretending that they have not been served with the court order. If I hear the Respondents’ well, same appear to feigning ignorance of the import and tenor of the Court Orders. 20.The question that falls for determination is: Are the respondents deserving of service of the court order, whose terms they are aware of? Suffice it to state that the law as pertains to contempt has gradually moved away from service of the court order, to proof of knowledge of the court order. 21. This position was illuminated in the case of Basil Criticos v Attorney General & 8 others & 4 others [2012] KEHC 1480 (KLR). The court [per Isaac Lenaola – Judge as he then was] stated thus: “In Re Tuck Murch v Loose More (1906) Ch 692 it was observed that,“...knowledge is higher than service...service is unnecessary where there is knowledge” 20. The issue of knowledge of orders as being sufficient was until recently, alien in our jurisprudence. In Kariuki and Others v Minister for Gender, Sports, Culture and Social Services and Others, (2004) I KLR 588, it was held; • ”...but in our law, service is higher than knowledge and since the service here was Page 9 of 17

page 9 of 17

frustrated…I shall hold in accord with the existing law that there was no service”. This was made following the decision in Wangondu (supra). However, the law has changed and as it stands today knowledge supersedes personal service and for good reason. This has recently been held in Kenya Tea Growers Association vs Francis Atwoli & 5 Others, Petition No.64 of 2010 where I opined as follows; “In the case before me, I am more than satisfied that even at the higher level of beyond reasonable doubt, when an individual has been served with and/or has knowledge of a court order but not only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli in fact went further to arrogate himself the decision to determine when the strike should end despite the fact that the Court Order had stopped it. He went further to interpret it as made without jurisdiction and that only the “Workers Court”, (the Industrial Court) had jurisdiction to determine the matter. He did not do so once but on a number of occasion as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious and his conduct and words can attract no other finding.” 22.Recently, the Court of Appeal re-affirmed the same position in the case of Executive Committee Kisii County, Governor, Kisii County & County Government of Kisii v Masosa Construction Company Limited & Transition Authority [2020] KECA 801 (KLR). The court reiterated the position thus: “ In Justus Kariuki Mate v Martin Nyaga Wambora, [2014] eKLR this Court acknowledged the move from the position that an order endorsed with a penal notice must be Page 10 of 17

page 10 of 17

personally served on a person before contempt can be proved. Lenaola, J (as he then was) in the case of Basil Criticos v Attorney General [2012] eKLR perceived an additional ground for dispensation with the requirement for personal service; “… where a party clearly acts and shows that he had knowledge of a court order, the strict requirement that personal service must be proved is rendered unnecessary”. Similarly, the requirement of notice of the prohibitory judgement or order would also be satisfied where a party is represented counsel who was present in court when the orders were made. Therefore, knowledge of the judgment or order by an alleged contemnor’s advocate suffices for contempt proceedings. There is a presumption that when an advocate appears in court on instructions of a party, it behoves him to report back to the client all that transpired in court that has a bearing on the client’s case. This presumption is in line with the dicta of the Canadian Supreme Court in the case of Bhatnager v Canada, (Minister of Employment and Immigration 1990] 2 SCR 217 where it was held that a finding of knowledge on the part of the client may be inferred from the fact that the solicitor was informed.Similarly, in the United States case of United States v Review 834 F.2d 1198, 1203 (5th Cir. 1987) it was held that a Page 11 of 17

page 11 of 17

defendant had adequate notice of a show cause order because his attorney was on notice. (See also Kenya Supreme Court dicta in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR).” 23. From the foregoing position, there is no gainsaying that the submissions by/ on behalf of the learned counsel for the respondents, are misconceived. The question of proof of service, which coloured the decision in Ochieng Nyamogo [supra], is no longer a primary requirement, in matters of contempt. 24.Are the respondents guilty of contempt? The answer to this question is, certainly, in the affirmative. The respondents have failed/declined/neglected to comply with the court orders. The respondents have no lawful excuse. Indeed, none has been proffered. 25.Before concluding on this issue, it is apposite to reference the holding of the court in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR). The Court of Appeal, while emphasizing the importance of compliance with court orders stated thus: “We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26 th President of the United States of America once said:- Page 12 of 17

page 12 of 17

“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’. The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on us by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy .We think we have said enough to send this important message across.” 26.Moving on to the issue of reliefs, I wish to state that this court [differently constituted] issued clear and unambiguous orders on the 12.06.2024. The orders of the court have neither been varied, reviewed and or set aside. In addition, an attempt to stay the orders was declined. 27.Pursuant to the orders of the court, the respondents herein were commanded to vacate the suit property. The respondents have declined to do so. They have continued to occupy the suit property and thus deprived the applicants of their lawful rights. 28.Additionally, the respondents were directed to exhume the body of George Thuranira M’Nyiruu from the suit property. Again, the respondents have refused to abide. The respondents are biding their luck. The respondents are tempting fate, to see whether courts of law, have teeth to bite. 29.Moreover, evidence abound that instead of vacating and removing the body of George Thuranira M’Nyiruu [deceased], the respondents have Page 13 of 17

page 13 of 17

gone ahead and buried the body of Tabitha Kinaitore M’Nyiru on the suit property. Instructively, the latter burial was undertaken in January, 2026, during the lifetime of the orders of the court. 30.The conduct of the Respondents is detrimental to the dignity and integrity of the court. It is time that the court seizes the force, to ensure that its orders are enforced. The circumstances beforehand, need to be averted and tamed. Conclusion: 31.The applicants were enjoined to establish the various elements that underpin contempt. The elements to be established are trite and well known. The applicants have indeed established the elements. 32.Additionally, there is no gainsaying that court orders are neither ornamental nor cosmetic. Court orders are issued to be obeyed. The parties have no recourse, but to obey the court orders. This was the position in the case of Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] KECA 789 (KLR), where the court stated thus: “When courts issue orders, they do so not as suggestions or pleas to the persons at whom they are directed. Court orders issue ex cathedra, are compulsive, peremptory and expressly binding. It is Page 14 of 17

page 14 of 17

not for any party; be he high or low, weak or mighty and quite regardless of his status or 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. This Court, as must all courts, will deal firmly and decisively with any party who deigns to disobey court orders and will do so not only to preserve its own authority and dignity but the more to ensure and demonstrate that the constitutional edicts of equality under the law, and the upholding of the rule of law are not mere platitudes but present realities.” Final orders: 33.Flowing from the foregoing, the final orders of the court are thus: i. The Subject Application be and is hereby allowed. ii. The Plaintiffs/Respondents be and are hereby found guilty of contempt of the orders of the court issued on the 12.06.2024. iii. The Plaintiffs/Respondents be and are hereby cited for contempt. iv. The Plaintiffs/Respondents shall attend court on the 17.09.2026 for purposes mitigation and where apposite punishment in accordance with the Provision of Section 29 of the Environment and Land Court Act, 2011. Page 15 of 17

page 15 of 17

v. The Plaintiffs/Respondents shall be evicted from the suit property [LR No. Mulathankari/9] forthwith. vi. To this end, an eviction order is hereby issued. vii. The Plaintiffs/Respondents shall equally remove /exhume the bodies of George Thuranira M’Nyiruu [deceased] and Tabitha Kinaitore M,Nyiruu [deceased] within 14 days from the date hereof. viii. The officer commanding Police Station [OCS] Giakii Police Station shall provide Reasonable security to facilitate the implementation and enforcement of the court order. ix. The applicants herein shall pay the reasonable expenses /charge attendant to the provision of security/in accordance with the government scales. x. The costs of the application shall be borne by the plaintiff/respondents. xi. Furthermore, the costs in terms in of clause [ix] be and are hereby certified in the sum of Kshs. 30,000/= only. 34.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 04TH DAY OF AUGUST, 2026 Page 16 of 17

page 16 of 17

OGUTTU MBOYA, FCIArb; CPM [MTI]. JUDGE In the presence of: Court Assistant: Zakayo Mr. Kuria Karatu and Ms. Nelima for the Defendants/Applicants Mr. Mwanzia for the Plaintiffs/Respondents Page 17 of 17

page 17 of 17