Prudential Capital Ltd & another v Mukiti

d. That in default of compliance, the court be pleased to authorize the Deputy Registrar of this Honourable Court to execute all documents necessary for transfer to facilitate the registration of the Respondent /Applicant as proprietor of the said parcel of land and e. That the costs of this application be borne by the Appellant. 2. The application is anchored on the Applicant’s supporting adavit sworn on 9.2.26. In the said adavit she deposes that on 26.4.23 the parties herein recorded a consent judgment in Ruiru CM ELC E101 of 2022 requiring the Appellant to process and deliver title deeds for land parcel 36707, 36708 and 36709 upon payment of the processing fees. 3. He avers that she paid the processing fees of Kshs. 160,000 and the Appellant delivered the title in respect of land parcels no 3608 and 3609 but led an appeal in respect of parcel 3607 which appeal was dismissed on 27.10.25. He adds that despite the dismissal, the Appellant has failed an/or neglected to deliver the title for parcel 3607, which amounts to contemptuous and willful disobedience of court orders. 4. The application was met with sti opposition from the Appellants through the Replying adavit of David Chege Mworia, one of the directors of the Appellant company, sworn on 8.5.26. 5. He avers that the procedure for contempt of court requires that the order be endorsed with a penal notice notifying the respondent of the consequences of disobedience and that the same be served personally upon him. He is of the view that personal service is a mandatory prerequisite for initiating contempt of court proceedings. 6. He takes the position that since the Applicant averred that he sent the order to the Respondent’s advocates via email, the application is fatally defective. 7. He further avers that the Appellant has challenged the judgment of this court in the Court of Appeal and applied for a stay of execution and therefore the alleged non-compliance is in exercise of the Appellant’s lawful right of appeal. He therefore characterizes the application as premature, untenable in law and an abuse of the court process. 8. The application was canvassed through written submissions as directed by the court. Analysis And Determination 9. Having considered the Notice of Motion, Supporting Adavit, Replying Adavit and the parties’ written submissions the issued that arise for determination are as follows: i. Whether the application meets the mandatory procedural requirements for contempt of court proceedings. ii. Whether the Honourable court should issue a coercive order compelling the Appellant/ Judgment Debtor to deliver the original title deed for Land Parcel Number 36707 duly processed and registered in the Respondent /Applicant’s name within 14 days, in default the directors be punished; iii. Whether the court should authorize the Deputy Registrar of this Honourable Court to execute all documents necessary for transfer to facilitate the registration of the Respondent /Applicant as proprietor of the said parcel of land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5398/eng@2026-07-30 2

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10. Black’s Law Dictionary (11th Edition) denes contempt of court as:“ Conduct that dees the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable usually by ne or imprisonment.” 11. The instructive provision on contempt of court is Section 5 (1) of the Judicature Act, which grants the High Court and the Court of Appeal the power to punish for contempt. Additionally, for this court, Section 29 of the Environment and Land Court Act provides that:“ Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an oence, and shall, on conviction, be liable to a ne not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 12. This Court, therefore, has inherent powers under the Judicature Act as well as Section 29 of the Environment and Land Court Act. The jurisdiction of the superior courts to punish litigants for contempt of court when they fail or refuse to obey court orders is aimed at protecting the dignity and legitimacy of the courts. The test applicable in an application for contempt, was well set out in Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR where the court held that:“ 40. It is an established principle of law that 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, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated:“ There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate’. 13. I will now proceed to establish if the above elements have been met. 14. There is no dispute that the terms of the judgment were clear and unambiguous. The parties recorded a Consent dated 25th April 2023, which was adopted as an order of the court on 26th April 2023. The terms of the Consent Order were as follows: i. That the Respondent to pay a sum of Kenya Shillings One Hundred and Sixty Thousand only (Ksh 160,000) as titles processing fees. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5398/eng@2026-07-30 3

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ii. That the Appellants to process title numbers Ruiru/Ruiru East Block 2/36707, Ruiru/Ruiru East Block 2/36708 and Ruiru/Ruiru East Block 2/36709 in the name of the Respondent within thirty (30) days. iii. That once the titles are out in the name of the Respondent, the matter may be marked as settled with no orders as to costs. iv. That the matter be mentioned in early June 2013 to conrm titles are out and mark the matter as settled. (sic) v. That mention 5/6/2023 for compliance. 15. The Appellants’ application to set aside the said consent was subsequently dismissed vide a ruling delivered on 2nd November 2023. An appeal against the said ruling was equally dismissed by this honourable court’s judgment delivered on 27th October 2025. The court emphasized that the consent order was valid and enforceable. That remains the position as at now. Although the Applicant has stated that he has led an appeal in the Court of Appeal, the said appeal has not yet been set down for hearing nor has the Court of Appeal issued any order of stay. 16. Regarding the Respondent’s knowledge of the terms of the consent, the Respondent admitted that she scanned and sent copies of the application and order and served the same upon the Applicant’s advocates. There is no indication that the said order was endorsed with a penal notice. As was stated in the case of Samwel M.N Mweru & Others v National Land Commission & Others (2020) eKLR “ It is an established procedure of law that 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 (iii) Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements, the presence of willfulness and bad faith on the part of the Respondent would normally be inferred but the Respondent could rebut this inference by contrary proof on a balance of probabilities” 17. It is the Respondent’s contention that the Applicant has not met the required standard of proof as she did not demonstrate that there was personal service of the order nor was the said order endorsed with a penal notice. 18. Additionally it has been submitted by the Respondent’s counsel that in line with the case of Mutitika v Baharini Farm Liited ( 1985) KLR 229, “ Recourse ought not to be had to the process of contempt in aid of a civil remedy where there is any other method of doing justice”. 19. Counsel has contended that the Applicant’s own application betrays the existence of alternative remedies as prayer 4 of the application seeks authorization of the Deputy Registrar of this Honourable Court to execute all the documents necessary for transfer and registration of the suit property in the Applicant’s name. He argues that the quasi -criminal machinery of contempt which places the liberty of the contemnors at stake ought not to be deployed as a tool of execution where such alternative avenues exist and where the underlying judgment is the subject of an appeal. 20. He argues that if the court issues the coercive orders sought compelling the delivery and registration of the title of land parcel 36707, the eect would be to conclusively dispose of the very subject matter of the pending appeal in COACA E120 of 2026 thereby rendering the appeal nugatory. He therefore prayed the application be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5398/eng@2026-07-30 4

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21. On her part, the Applicant maintains that service upon the Applicant’s advocates was proper and adequate. She relies on the case of Shimmers Plaza Limited v National Bank of Kenya Limited (2015) eKLR where the Court of Appeal held that knowledge of a court order supersedes personal service and where a party has knowledge of the order, the requirement of personal service becomes unnecessary. 22. She submits that the Appellant has not denied that its advocates were served nor has he challenged the validity of the order. 23. On whether the order was clear and unambiguous, the Applicant submitted that the terms of the order were plain, specic and incapable of multiple interpretations. She is of the view that the Appellant’s disagreement with the respondent’s claim that the purchase price was paid in full should not be an excuse to disobey the said order. 24. The Applicant submitted that the Appellant’s conduct amounts to a direct aront to the authority and dignity of the court. She urged the court not to allow litigants to evade complying with orders they did not agree with. She contended that the Appellants had oered no explanation for failure to comply with the court order other than the explanation that it was not personally served. 25. The Applicant dismissed the Appellant’s assertion that they had led an appeal in the Court of appeal as the ling of an appeal does not operate as a stay of execution. She added that the Appellants have not demonstrated that they have an order staying execution and therefore the order remains valid, binding and enforceable. She submitted that the she had established the requisite threshold for grant of the orders sought and urged the court to allow the application. 26. In the nal analysis it is my nding that the application does not meet the mandatory statutory requirements for contempt of court proceedings. Even though the Applicant had demonstrated that the said order was served upon the Appellants’ advocates, it had not been demonstrated that the said order was endorsed with the penal notice as required. 27. Furthermore, it has not been demonstrated that justice can only be achieved through committal to civil jail of the Appellant’s directors, payment of a ne or an order for attachment of the company’s property. Infact the Applicant has prayed for an alternative and equally eective remedy of asking the court to authorize the Deputy Registrar of this Honourable Court to execute all documents necessary for transfer to facilitate the registration of the Respondent /Applicant as proprietor of the said parcel of land. This would in my view, achieve the ends of justice as desired by the Applicant. 28. As regards the issue of the appeal in the Court of Appeal, it is trite that the ling of an appeal on its own does not act as a stay of execution. As matters stand, the Appellants have not placed any order before this court to demonstrate that the Applicant should not implement the consent judgment. 29. Consequently, the application succeeds partially and I make the following orders: a. An order is hereby issued compelling the Appellant/Judgment Debtor to deliver the original title deed for Land Parcel Number 36707 duly processed and registered in the Respondent / Applicant’s name within 14 days. b. That in default of compliance, the Deputy Registrar of this Honourable Court is hereby authorized to execute all documents of transfer necessary to facilitate the registration of the Respondent /Applicant as proprietor of the said parcel of land. c. That the costs of this application shall be borne by the Appellant. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5398/eng@2026-07-30 5

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J.M ONYANGO JUDGE In the presence of: Mr. Mutemi for 1st and 2nd Appellant Mercy Mukiti present in person https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5398/eng@2026-07-30 6

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