Stephen Muthuka Kimeu & Ruth Mueni Kimeu v Charles Mutisya Mutinda & 5 others

4) THAT the 1st, 2nd and 5th Respondents be found to have disobeyed court orders and be punished as per Section 29 of the Environment and Land Court Act by being penalized to pay a fine of Kshs. 20,000,000/= each and be imprisoned for a period of two years each. 5) THAT any other relief that this Honourable Court shall deem fit to grant in lieu of (3) and (4) above. 6) THAT the Respondents be ordered to remove the illegal fence they have illegally erected on the suit property. 7) THAT the Respondents be ordered to remove the illegal beacons they have placed on the suit property and restore the beacons. 8) THAT costs of this application be provided for. 2. The application is premised on the grounds appearing on its face. It is also supported by the affidavits of Stephen Muthuka Kimeu and Amos Kavisu sworn on even date. In the affidavit of Stephen Kimeu, he averred that he is the registered owner of land Parcel No. Nzaui/Masumba/813 whereas the 2nd Applicant is the registered owner of land Parcel No. Nzaui/Masumba/815. The deponent stated that on 5th February, 2026, this court issued an interlocutory order of injunction against the Respondents. That on 20th May, 2026, the 5th Respondent was served with a copy of the said order and duly acknowledged service of the same. 3. The deponent contended that rather than ensuring compliance with the court orders, the 5th Respondent wrote a letter addressed to the 4 th Respondent requesting that the office do visit the site for an ascertainment of the boundaries of the suit properties against Parcel No. Nzaui/Masumba/409. He further contended that he had made several reports to the 5th Respondent concerning the violation of the court orders and the destruction at the suit properties but no action had been taken. ELC NO. E041 OF 2025 2|Page

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4. The deponent lamented that on 2nd May, 2026, the agents of the 1st and 2nd Respondents came to the suit properties and cut down trees with a power saw. That upon reporting the matter at Masumba Police Post, the suspects were arrested but later unprocedurally released with the power saw also being surrendered to them. The Applicant bemoaned that the 5 th Respondent watched over the 1st and 2nd Respondents’ activities as they cut down trees, burned charcoal and put up a fence on the Applicants’ parcel of land. 5. The applicant contended that the 1st and 2nd Respondents’ actions are wellcalculated to undermine the orders of the court and unless the application is allowed, the subject matter of the suit will be dissipated and the proceedings rendered academic. 6. In the affidavit sworn by Amos Mutambu, he averred that he is a licensed court process server and that on 11th April, 2026, he served a copy of the court order issued on 9th April, 2026 via email to the 1 st and 2nd Respondents. He further stated that the 5th Respondent was served with a copy of the court order which he duly acknowledged. 7. Opposing the application, the 1st Respondent filed a replying affidavit sworn on 16th July, 2026 on his behalf and that of the 2nd Respondent. He averred that he is a co-administrator of the estate of the late Mutinda Makau who was the proprietor of land Parcel No. Nzaui/Masumba/409. He further refuted the allegation they have encroached into the Applicants’ land arguing that there exists a road between the Applicants’ land and Parcel No. Nzaui/Masumba/409. 8. The deponent refuted service of the court orders to the 1 st and 2nd Respondent as alleged in the application. He further disowned the two email addresses quoted in the affidavit of Amos Mutambu stating that even the 2 nd Respondent does not own a smartphone. The 1st Respondent insisted that his phone number ELC NO. E041 OF 2025 3|Page

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0720298058 has whatsapp installed and that he has previously been served in Makindu Succession Cause No. 31 of 2026 on the same line. 9. It is the 1st Respondent’s contention that the Applicants have not placed any material before court to show the alleged encroachment onto the suit properties in order for the court to make a finding of trespass or removal of beacons. Again, the 1st Respondent reiterated that they have never been served with pleadings or any court order in person. He urged the court to dismiss the application with costs. 10.The application was disposed of by way of oral submissions where Counsel for the Applicants and Counsel for the 1st and 2nd Respondents echoed the averments in the respective affidavits. 11.The sole issue for determination is whether the Applicants have demonstrated that the Respondents deliberately breached the terms of the Court order issued on 5th February, 2026 in order to cite them for contempt of court. 12.The instant application has been brought under the provisions of Section 5 of the Judicature Act Cap 8 Laws of Kenya which provides as follows: 1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts. 2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court. ELC NO. E041 OF 2025 4|Page

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13.In Wekesa & 2 Others v Munialo [2025] KECA 679 (KLR), the Court of Appeal reaffirmed the ingredients of contempt as stated by Mativo, J. (as he then was) in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR. The Court observed as follows: “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 wilfulness 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.” 14.Whereas the Applicants alleged that the 1st and 2nd Respondents had been served with the court order dated 5th February, 2026 via email, the 1 st Respondent refuted the said allegations. The 1st Respondent disowned the email address cited by the process server under paragraph 3 of the affidavit sworn on 17 th ELC NO. E041 OF 2025 5|Page

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June, 2026. Instead, he insisted that his email address is charlesmutisya17@gmail.com. Again, he insisted that as opposed to the process server’s allegations that his phone number 0720298058 could not access messages sent via whatsapp, he had ordinarily been served on the same line in previous litigation to wit Makindu SPMCC No. 31 of 2016. The process server did not annex evidence of failed attempts to serve the 1 st Respondent through the same line. 15.The 1st Respondent refuted the allegations that the 2 nd Respondent was served via email insisting that the 2nd Respondent does not have an email address. Again, it is uncertain whether the email quoted under paragraph 4 of the process server’s affidavit belongs to the 2nd Respondent. 16.For the above reasons, this court is not satisfied that the 1 st and 2nd Defendants had personal knowledge of the court order issued on 5 th February, 2026. Therefore, an order citing them for contempt is not commendable in the circumstances. 17.In the case of Langat & 2 others (Suing as the officials of the 343 members of Koita Welfare Self Help Group) v Kericho County Secretary & 12 others (Civil Appeal (Application) E142 of 2022) [2026] KECA 601 (KLR), the Court of Appeal aptly held that:“Contempt proceedings being quasi-criminal in nature, the standard of proof required is higher than in civil cases. The alleged contemnor is entitled to the protection of al safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear-cut case of willful and intentional obstruction of administration of justice. The case should not rest only on surmises and conjectures. A question whether there is contempt of court or not is a serious one. It behooves the Court to act with as great circumspection as possible making ELC NO. E041 OF 2025 6|Page

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all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. The power to punish for contempt is a powerful weapon that should be exercised with utmost care and caution.” 18.There is no way the 5th Respondent would have ensured compliance with the orders given on 5th February, 2026. I therefore find no merit in this application which is dismissed with costs to the Respondent. It is so ordered. …………………………………. HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Lusweti for Applicant. Mr. Hassan for 1st and 2nd Respondents. Court assistants – Kilonzo & Musyoki ELC NO. E041 OF 2025 7|Page

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