Stephen Macharia Kinyua v Michael Wachira Mwangi & 2 Others

Notice of Motion dated 16th April 2026. 2. It is filed by the 1st Defendant who seeks the following Orders: a) Spent. b) Spent. c) That in the alternative, pending the full hearing and determination of this suit, this Honourable Court be pleased to issue an injunction against the Plaintiff to forthwith cease any further construction on his property, LR No.6845/1902, as failure to grant this order will render any final judgement in favour of the 1st Defendant nugatory and cause irreparable harm that cannot be compensated by damages concerning his property LR Nairobi/Block 206/5063. d) That the costs of this application be provided for. 3. The application is premised on grounds on its face and on the 1st Defendant’s supporting affidavit. He avers that he is the ELC L CASE NO. E118 OF 2023 Page 2 of 20 Ruling

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registered owner of LR Nairobi/Block 206/5063 which adjoins the Plaintiff’s property, LR No. 6845/1902. Further, that the Plaintiff filed the instant suit alleging that the 2nd Defendant and himself had obstructed his right of way and on 13th December 2023, parties agreed by consent that the dispute be referred to the Land Registrar under Sections 18 and 19 of the Land Registration Act. 4. Pursuant thereto, this Court, vide its Orders of 10th January 2024, directed the Director of Survey to visit the scene and file a report. He explains that in compliance, the Director of Survey carried out a ground survey of the suit properties and filed a report dated 15th April 2024, concluding that the Defendants have neither encroached nor obstructed the road reserve and that the Plaintiff’s apartment block on LR No. 6845/1902 encroaches uniformly into the Defendants’ property by approximately 2.3 meters. 5. He states that subsequently, on 17th July 2024, the Court discharged the Order of temporary injunction issued to the ELC L CASE NO. E118 OF 2023 Page 3 of 20 Ruling

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Plaintiff against the Defendants and referred the matter to the Land Registrar for determination of the boundary dispute. He claims that he has submitted a copy of his title to the Land Registrar towards the resolution of the dispute while on his part, the Plaintiff informed the Court that he has not been issued with his title document with respect to LR No. 6845/1902, thereby frustrating the resolution of the matter through the office of the Land Registrar. Further, that this position raises questions as to how the Plaintiff procured approvals for the ongoing construction on the said parcel without a title document. 6. He claims that in recent days, the Plaintiff has commenced construction of an existing incomplete block of apartments on LR No. 6845/1902 and is currently adding a third floor in clear abuse of Court process, notwithstanding the aforementioned survey report indicating that he has encroached on 1st and 2nd Defendants’ property. He contends that unless restrained, the Plaintiff’s construction will cause ELC L CASE NO. E118 OF 2023 Page 4 of 20 Ruling

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irreparable harm to his property, which cannot be adequately compensated by an award of damages. Response 7. The application is opposed by the Plaintiff who contends that the construction being undertaken is on LR No. 6845/1901 not 6845/1902. Further, that parties had discussed about the said construction and the 1st Defendant consented to it, as it was not touching on the suit properties. He disagrees with the survey report dated 15th April 2024 and claims it was biased. He avers that he undertook his private survey which indicates that all properties including the Defendants’, were constructed based on the initial map being the provisional ‘sale map’. He contends that the implementation of the second map will lead to catastrophic results as it will cause all the buildings, including the 1 st Defendant’s to be demolished by 2.3 meters. He urges the court to undertake a site visit of the properties to appreciate the situation on the ground. ELC L CASE NO. E118 OF 2023 Page 5 of 20 Ruling

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Notice of Motion dated 4th June 2026 8. It is filed by the 1st Defendant who seeks the following Orders: a) b) Spent. That this court be pleased to find and declare the Plaintiff in contempt of court for willfully disobeying the orders of this Honourable Court issued on 17th April 2026. c) That this Honourable Court be pleased to issue a warrant of arrest against the Plaintiff and his committal to civil jail for six (6) months, or for such other period as this Honourable Court shall deem just and expedient. d) That this Honourable Court be pleased to order the Inspector General of Police to enforce this orders by bringing arresting him to cited court for contemnor and sentencing and committal. ELC L CASE NO. E118 OF 2023 Page 6 of 20 Ruling

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e) That in the alternative to prayer (b) herein above, this Honourable court do issue a Notice to Show Cause directing the Plaintiff to appear before this Honourable Court to show cause why he should not be punished for disobedience of court orders issued on 17th April 2026. f) That this court be pleased to further impose a fine on the Plaintiff in the sum of at least kshs.1,000,000/= as a punitive measure for his contemptuous conduct. g) That this Honourable court be pleased to issue such other orders as it shall deem fit and just in its absolute discretion. h) That the costs of this application be provided for. 9. The application is premised on grounds on its face and on the 1st Defendant’s supporting affidavit. He avers that upon filing his Notice of Motion dated 16th April 2026, the Court allowed prayer (b) thereof on 17th April 2026, thereby granting a temporary injunction restraining the Plaintiff from continuing with any further construction on his property LR No. ELC L CASE NO. E118 OF 2023 Page 7 of 20 Ruling

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6845/1902, pending a full determination of this suit. He confirms that the Order was served by his advocates on the Plaintiff’s advocates through their email address. 10. Subsequently, the Plaintiff filed a replying affidavit dated 28 th April 2026 in response to his Notice of Motion dated 16 th April 2026 where he claimed that construction is being undertaken on LR No. 6845/901 not LR No. 6845/902. He contends that his advocates also sent a letter through WhatsApp to Mr. Maina Kaumbuthu, Advocate for the Plaintiff, in which she intimated that she would file a contempt application against his client for continued construction despite the Court Order. 11. He insists that the block of flats he seeks to stop construction of, is the same block of flats that the Plaintiff attached a picture of in his affidavit dated 13 th October 2023 claiming he had encroached on it. Further, that even if the construction is being undertaken on LR No. 6845/1901 as claimed but which is denied, it still encroaches on his property and is ELC L CASE NO. E118 OF 2023 Page 8 of 20 Ruling

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causing him untold suffering. He also contends that he visited the said property on 25th May 2026 and observed active construction works ongoing, adding that the Plaintiff’s actions are calculated to undermine the authority of this Court. Response 12. In opposition, the Plaintiff filed a replying affidavit whose averments mirror those in his replying affidavit to the Notice of Motion dated 16th April 2026. In addition, he denies being in contempt of this Court’s Orders as alleged and contends that the 1st Defendant has not substantiated his claim with evidence. He insists that construction is being undertaken on LR No. 6845/1901. 13. The application was canvassed by way of written submissions. Submissions 14. The 1st Defendant submits that he has established the principles for grant of injunctions, established in the case of ELC L CASE NO. E118 OF 2023 Page 9 of 20 Ruling

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Giella v Cassman Brown & Company Limited [1973] EA 358, having demonstrated that the Plaintiff’s building on LR No. 6845/1902 has encroached on his property as per the government surveyors report dated 15th July 2024. Further, that he has demonstrated that the Plaintiff is stalling determination of the boundary dispute before the Land Registrar since he has refused to submit his title to LR No. 6845 /1902 for purposes of confirmation of boundaries. 15. He also points out that the Plaintiff has plainly admitted that he is actively constructing but he has excused his conduct by alleging that the construction is on another plot yet he does not put forward any evidence to that effect. He insists that his constitutional rights to his property are being violated by the Plaintiff’s continued encroachment and if it proceeds and he succeeds in the suit, the resultant prejudice will be substantial. He also submits that he has made out a case on the balance of convenience and relies on the case of Isaack ELC L CASE NO. E118 OF 2023 Page 10 of 20 Ruling

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v Bank of Baroda (Kenya) Limited & another [2025] KEELC 6722 (KLR) to buttress his averments. 16. On his prayer for a declaration that the Plaintiff is in contempt of this Court’s Orders issued on 17 th April 2026, he relies on the case of Samuel M N Mweru & Another v National Land Commission & 2 Others [2020] eKLR to submit that the Plaintiff is in contempt for disobedience of this Court’s Orders yet they were clear, unambiguous and he was aware of them. Further, that the Plaintiff is using semantics around the plot numbers without providing evidence. 17. On his part, the Plaintiff submits that the 1 st Defendant did not meet the principles for the grant of interim injunctions enunciated in the case of Giella v Cassman Brown & Co [1973] EA 358 (supra). He reiterates that his construction is being undertaken on LR No. 6845/1901 which is adjacent to the suit property but is not subject of this suit thus the 1 st Defendant has not established a prima facie case and he will ELC L CASE NO. E118 OF 2023 Page 11 of 20 Ruling

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not suffer any prejudice as the construction is not on the suit property. Further, that construction on the said property did not commence on or around April 2026 but it commenced in the month of February 2026 and all along the 1st Defendant did not object. He also submits that even if Orders are issued affecting the parcel he is constructing on, he would still carry out any demolition if need be. 18. On the issue of being in contempt of this Court’s Orders of 17th April 2026, he submits that they were made pursuant to the suit property and not in light of the property known as L.R NO. 6845/1901 thus one cannot be in contempt of orders that do not apply to the matter in issue. 19. He also submits that the application for contempt of Court Orders is defective as the 1st Defendant did not serve upon him a Penal Notice accompanying the impugned Order for the basis of commencing the contempt proceedings. Further, that the required standard of proof for contempt proceedings is higher than the normal balance of probabilities yet the 1 st ELC L CASE NO. E118 OF 2023 Page 12 of 20 Ruling

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Defendant does not substantiate with evidence the allegation that he in contempt of this Court Orders. Analysis and Determination 20. Having considered the two instant Notice of Motion applications including the respective affidavits and rivalling submissions, the following are the issues for determination: a) Whether the threshold for injunction 1st Defendant grant of restraining has an met the interlocutory the Plaintiff’s construction on LR No.6845/1902. b) Whether the Plaintiff is in contempt of this court orders issued on the 17th April 2026. 21. The 1st Defendant contends that pursuant to the Director of Survey's report dated 15th April 2024, the Plaintiff's apartment block on LR No. 6845/1902 encroaches by approximately 2.3 meters into his property. Further, that the Plaintiff is continuing ELC L CASE NO. E118 OF 2023 Page 13 of 20 with the said Ruling construction

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notwithstanding the said finding and the fact that the dispute is now a boundary dispute before the Land Registrar. He contends that the delay in confirming the boundary is due to the fact that the Plaintiff has declined to furnish his title to the Land Registrar. 22. While the Plaintiff admits to undertaking a construction of apartments, his position is that the construction complained of is being undertaken on LR No. 6845/1901, and not LR No. 6845/1902, which is the suit property. He further disputes the Government Surveyor’s survey report on the basis of bias and contends that he conducted a private survey which gave a different position. 23. On the first issue, the Court will determine whether the 1 st Defendant meets the threshold for grant of injunctions as established in the case of Giella v Cassman Brown (1973) EA 358 and rely on the definition of a prima facie case as stated in the case of Mrao Ltd v First American Bank Limited (2003) KLR 125. ELC L CASE NO. E118 OF 2023 Page 14 of 20 I note as per Government Ruling

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Surveyor’s report dated the 15th April 2024, it concluded that the Defendants have neither encroached nor obstructed the road reserve and it is actually the Plaintiff’s apartment block on LR No. 6845/1902 that encroaches uniformly into the Defendants’ property by approximately 2.3 meters. The Plaintiff has not disputed that he has failed to submit his title to LR No. 6845 /1902 to the Land Registrar for purposes of confirmation of boundaries. The Plaintiff disputes the findings of the Government Surveyor and argues that he brought in a private surveyor who confirmed that he has not encroached on the 1st and 2nd Defendants’ properties. The Plaintiff has argued that he is constructing on a different parcel of land but the 1st Defendant insists that the ongoing construction is the same construction on LR No. 6845/1902 and that it encroaches upon his property. 24. At this juncture, noting that it is only the Land Registrar in collaboration with a Government Surveyor who is mandated to confirm position of a boundary in accordance with sections ELC L CASE NO. E118 OF 2023 Page 15 of 20 Ruling

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18 and 19 of the Land Registration Act and not a private surveyor. Further, noting that the Plaintiff has refused to furnish his copy of his title to aid in the confirmation of the boundaries and instead continued to construct on the disputed portion of land, I find that the 1st Defendant has indeed established a prima facie case to warrant the Orders of interlocutory injunction as sought. I further find that since the Government Surveyor had confirmed encroachment by the Plaintiff, who is undertaking construction before the boundary is demarcated, the 1st Defendant would suffer irreparable harm which cannot be compensated by damages if the construction is let to continue. Further, the balance of convenience tilts in favour of granting an interlocutory injunction to stop the construction by the Plaintiff until the boundaries are confirmed. 25. On the second issue, it is not disputed that on 17 th April 2026, this Court granted prayer (b) of the Plaintiff’s Notice of Motion dated 16th April ELC L CASE NO. E118 OF 2023 Page 16 of 20 2026, essentially Ruling restraining

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construction on LR No. 6845/1902. The Plaintiff, however, maintains that the construction is on LR No. 6845/1901 which is not subject of the suit thus he is not in contempt of this Court’s Orders. He also argues that by reason that he was not served with a penal notice of the said Orders, the application for contempt is defective. 26.On contempt, in Wildlife Lodges Limited v Narok County Council & 3 others [2011] eKLR the Court of Appeal stated that: “It was the plain and unqualified obligation of every person against or in respect of whom an order was jurisdiction made to by a obey it Court until of that competent order was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged his contempt. A party who knows of an order, whether null or valid, regular irregular, cannot be permitted to disobey it…...” ELC L CASE NO. E118 OF 2023 Page 17 of 20 Ruling or

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27. Further, in Mutitika v Baharini Farm Ltd [1985] eKLR, the Court of Appeal stated inter alia; “…In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases…” 28. On the Plaintiff’s contention that the application for contempt is defective because he was not served with a penal notice, Courts have recognized that knowledge of the Order may suffice particularly where the alleged contemnor or his advocate had actual knowledge of the Order. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), the Court of Appeal stated thus: ELC L CASE NO. E118 OF 2023 Page 18 of 20 Ruling

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“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” Emphasis Mine 29. In the foregoing while associating myself with the decision cited noting that the Plaintiff has admitted to undertaking a construction of apartments, despite the Court Order but argues that the said construction complained of is being undertaken on LR No. 6845/1901, and not LR No. 6845/1902, which is the suit property, yet the Government Surveyor had confirmed encroachment. Further, since the Court Order which was not ambiguous was sent to the Plaintiff’s advocate who did not dispute receipt, I find that ELC L CASE NO. E118 OF 2023 Page 19 of 20 Ruling

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the Plaintiff is indeed in contempt of the impugned Order dated the 17th April 2026. I direct that a Notice to Show Cause do issue directing the Plaintiff to appear before this Honourable Court to show cause why he should not be punished for disobedience of Court Orders issued on 17th April 2026. 30. In the foregoing, I find the two instant Notice of Motion applications merited and will allow them. I direct the Plaintiff to bear the costs of the two applications. DATED SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of:Ms Rina for Mrs Okulo for 1st Defendant Maina for Plaintiff Court Assistant: Joan ELC L CASE NO. E118 OF 2023 Page 20 of 20 Ruling

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