Malika v Nyakoa

6. That this honourable court grants a temporary injunction and do issue orders restraining the respondent by himself, his agents, servants, proxies, or anybody acting on his instructions or at his behest and all other persons from disposing, trespassing, transferring, leasing, and/or evicting the applicant from the parcels of land known as Land Reference Number 36/VII/650 and Land Reference Number 36/VII/651 situated in Eastleigh area within Nairobi City County pending the hearing and determination of the main suit. 7. That this honourable court be pleased to issue an order citing the plainti/ applicant for violating the orders issued on 25th September 2024 and 5th March 2025. 8. That this honourable court be pleased to issue an order of inhibition inhibiting any dealings in the parcels of land known as Land Reference Number 36/ VII/650 and Land Reference Number 36/VII/651 situated in Eastleigh area within Nairobi City County pending the hearing and determination of the main suit herein. 9. That this honourable court be pleased to grant leave to the defendant to amend its defence and counterclaim and le further supplementary list of documents 10. That the Ocer Commanding Station, California (Eastleigh) Post Station to enforce compliance with the interim orders. 11. That the honourable court do make such other and further orders as it may deem t, necessary and expedient in the interests of justice. 12. That the costs of this application be provided for. 2. The application is premised on the grounds on its face. It is further supported by the adavit of the defendant/applicant sworn on even date. She deposed that the suit properties identied as land reference nos. 36/VII/630 and 36/VII/651 both situated in eastleigh area houses inter alia, a school known as Califonia Academy which she runs. The defendant/ applicant deposed that on 25th September, 2024, this court ordered inter alia that status quo be maintained pending the hearing and determination of this suit to preserve the subject matter of the suit. However, sometime in February 2025, and while the matter was actively pending in court, she discovered that the plainti/respondent was in the process of selling and transferring the suit properties to a third party when agents and/ or servants of one Mohamed Saleh informed her that the suit properties were being sold to the said Mohamed. 3. The defendant/applicant further discovered that the plainti/respondent had entered into a contract for the sale of the suit properties to the said Mohamed Saleh at Kshs.33,000,000/-, in disobedience of the court orders issued on 25th September, 2025. That despite these orders, on the night of 30th December 2025, the plainti/respondent through his agents trespassed onto the suit properties, particularly the school premises and demolished the same, bringing down the entire school structure. She reported the incident at California police station on 31st December 2025, and upon inquiry at the police station, she was informed that that the demolition had been undertaken on the instructions of the plainti/respondent, who even admitted having done so in their family whatsapp group. 4. The defendant/applicant deposed that the plainti’s/respondent’s actions constitute a blatant disregard and violation of this court’s orders, defeats the sanctity of the rule of law therefore amounting to contempt of court. Further, that she has since learnt that the plainti/applicant and a third party- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5389/eng@2026-09-03 2

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purchaser intends to develop the suit properties. That due to the action of the plainti/respondent, the learners have consequently been left without a school as all their original academic documentations and learning materials stored at the school premises have been destroyed in disregard of the fact that schools were scheduled to re-open on 5th January, 2026. The defendant/applicant deposed that reconstructing and/or restoring the unlawfully demolished school premises pending the hearing and determination of this suit will aid in mitigating the plight of the learners. 5. The defendant/applicant’s case is that she is confronted with an irreparable harm unless this court urgently intervenes in the rst instance and grants further injunctive orders and cite the plainti/ respondent for contempt of court for violating the interim orders previously issued in respect to the suit properties. 6. The plainti/respondent did not le his response to the instant application. The application was canvassed through written submissions. The defendant/applicant led written submissions dated 8th March, 2026 while the plainti/respondent led his written submissions dated 4th April, 2026. I have considered the application and the written submissions led. The issue for determination is whether the application has merit. 7. The defendant/applicant contends that the plainti/respondent is in disobedience of this court’s orders of status quo issued on 25th September, 2024 and injunction and inhibition orders issued on 5th March 2025, by demolishing the structures of the school known as Califonia academy located on the suit property. The plainti/respondent claims to have led his replying adavit sworn on 2nd February, 2026. The same is not on the case tracking system. As it is, the application is not opposed. However, the court has to determine the application on its merit. 8. The court will not address prayers 6 and 8 of the instant application as the temporary injunctive and inhibition orders issued by the court on 5th March, 2025 are still subsisting and continue to be in eect. I also note that the defendant/applicant has sought an order to amend her defence and counterclaim. She did not elaborate further on this prayer and neither did she annex a copy of the draft amendments for the court to assess the nature of the amendments sought. This prayer is therefore declined. 9. Contempt of court is a very serious oence, and it is quasi criminal in nature therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because the liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if she were to succeed. This was aptly stated by the court in the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR where the court cited with approval the case of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227 Petitioners that:“ Contempt of court is an oence 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 oences 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…” 10. In this case, there is an admission by the plainti/respondent allegedly sent on whatsapp informing the defendant/applicant to take her school elsewhere. This is in my view amounts to serious contempt as it demonstrates that the plainti/respondent has no respect for the rule of law therefore making a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5389/eng@2026-09-03 3

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mockery out of the court process. I nd the plainti/ respondent in contempt of the orders of this court issued on 5th March, 2025. 11. From the above, I nd merit in the notice of motion dated 16th January 2026 and it is allowed as follows:- i. The plainti/respondent is found in contempt of the orders of this court issued on 5th March, 2025. ii. The plainti/respondent is hereby ordered to appear in court on 04th November, 2026 at 2.30 p.m. to show cause why he should not be punished for being in contempt. iii. Failure to attend court on the said date, warrants of arrest to issue. The same to be executed by the ocer commanding station, california (Eastleigh) police post. iv. The defendant/applicant is awarded costs of this application. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE In the presence of:Mr. Benson Agunga – Court assistant Ms. Lagat holding brief for Mr. Ogong for the Defendant/Applicant No appearance for Ms. Chenger for the Plainti/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5389/eng@2026-09-03 4

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