Kamichar & 6 others v Del Monte Kenya Ltd & 10 others

HARON NGANGA WANJONKE ................................. 10TH INTERESTED PARTY RULING 1. This ruling is on the notice of motion dated 3-7-2026. The motion is brought under Sections 5(1) of the Judicature Act, 13(5) of the Environment and Land Court Act, Part 81 of the English Civil Procedure Rules, Order 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the Law. 2. The motion seeks the following residual orders. 3. 2. That the contemnors herein, Elizabeth Wambui Kamichar, Marionne Wacheke Thiongo, Appollo Githinji Thungari, Charles Mbate Githinji, Margaret Wanjiru, Nelson Makuna Thiongo, Brenda Wanjiru Karee and Joyce Nyambura Irungu, who having been served with, and/or having had knowledge of, the orders issued by Hon. Mr. Justice M.N. Gicheru on 30-6-2025 be cited for contempt for having willfully disobeyed, ignored and acted in breach thereof by entering upon the suit property and carrying out activities expressly prohibited by the said orders. 3. That the said contemnors Elizabeth Wambui Kamichar, Marionne Wacheke Thiong’o, Appollo Githinji Thungari, Charles Mbate Githua, Margaret Wanjiru, Nelson Makuna Thiongo, Brenda Wanjiru Karee and Joyce Nyambura Irungu be committed to jail for a term not exceeding six(6) months and/or be ned as Court may deem just and fair. 4. That the contemnors, whether by themselves, their agents, servants, employees or any other persons acting under their instructions or authority, be compelled forthwith to cease and desist from entering upon, occupying, using, carrying out rock drilling, rock blasting, rock extraction, tree felling, quarry mining operations or in any other manner interfering with the Applicant’s quiet possession and enjoyment of land reference No. 12157/10 (suit property). 5. That this Honourable Court be pleased to issue such further and/or alternative orders as may be necessary to enforce the orders issued by the Hon. Mr. Justice M.N. Gicheru on 30th June 2025 and to not only meet the ends of justice but also to secure and/or safeguard the suit land Reference Number 12157/10, the suit property. 6. That the Applicant be at liberty to apply for such further orders and/or directions as the court may deem t and just to grant. 7. That the costs of this application be provided for. The motion is based on fteen (15) grounds and the adavits sworn by the Defendant’s Managing Director, Wayne Cook and its Security Manager, Nicholas Kimani dated 23-6-2026 and 24-7-2026 respectively. A summary of the grounds and two adavits can be summarized as here below. One, on 30-6-2025, this Court issued orders of injunction against the Plaintis and anybody claiming through them from entering the suit land and/or carrying out any quarrying or other activities thereon pending the hearing and determination of this suit. The Plaintis are aware of these orders. Two, despite https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5678/eng@2026-09-21 2

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full knowledge of the above orders, the Plaintis have entered the suit land and are carrying out the forbidden activities of quarying. In this regard, on 3-6-2026 and again on 4-6-2026, the Defendant engaged the OCS, Ngati Police Station and requested his urgent intervention to enforce the orders dated 30-6-2025. The Defendant also wrote to the Plaintis’ Advocate on 4-6-2026 urging that they stop their illegal activities on the suit land. Their Advocate did not respond to the letter. He also did not attend Court on 8-6-2026 when the issue would have been raised. This has left the Defendant with no option but to le the current motion. Notwithstanding the existence of the said orders and the intervention sought from the police, the Plaintis have continued with the prohibited activities on the suit land thereby occasioning substantial loss, damage and prejudice to the Defendant. The Plaintis have exhibited violence, intimidation and hostility towards the Defendant, its ocers and other ocers seeking to implement the Court orders. Their conduct has created serious safety and security concerns which has placed at risk the wellbeing of the Applicant’s ocers. The Plaintis’ conduct and deance of the Court orders poses a real and imminent threat to public order and safety and also undermines the dignity and authority of this court. Three, in her witness statement dated 12-1-2026, the 1st Plainti stated that she has all the requisite licences for mining from the relevant authorities. This was a restatement of her replying adavit dated 3-3-2025 in opposition to the motion dated 24-2-2025 in which she said that she had employed over one thousand people in her mining activities. Yet in her replying adavit dated 20-7-2026, she claims to have been carrying out agricultural activities only. Four, on 11-6-2026 during a visit to the site with some security ocers in an attempt to enforce compliance, the 1st Plainti who was present as can be seen from the photograph where she is wearing a red T-shirt, she stated that the Plaintis would not vacate the suit property. Again on 17-6-2026 the 1st Plainti assaulted the Defendant’s internal surveyor, Simon Mutuku who was on the suit property to place the boundary markings. The assault was reported at Ngati Police Station vide OB No. 13 of 18-6-2026 where it is pending under investigation. Finally, it is in the interests of justice, rule of law and the preservation of the authority and dignity of the Court that appropriate sanctions be imposed upon the Plaintis for their willful and persistent disobedience of the orders of this Court. 4. The motion is opposed by the Plaintis and the rst Plainti has sworn two replying adavits dated 20-7-2026 and 27-7-2026. The gist of the two adavits is as follows. Firstly, the Plaintis’ suit is predicated upon ownership and the Plaintis have never, by themselves conducted quarrying activities and they do not own heavy machinery capable of quarrying. It is not possible to own heavy machinery that is unidentiable by the registered owner of such machinery as alleged by the Defendant’s Counsel. The Plaintis are farmers and not miners and the initial activity that they undertook prior to the court order dated 30-6-2025 was farming and not mining. Secondly, it is the Defendant which has wantonly destroyed existing structures which had been set up by the Plaintis. When the Plaintis complained against the Defendant and led an Application for contempt dated 26-6-2025, the Defendant brushed it o and termed it as a waste of time and now it is the turn of the Defendant to complain of the same actions that the Plainti complained of. How then can the Plaintis be punished for the same actions that the Defendant was not punished for. The Defendant has fallen out with the persons it engaged to destroy the Plainti’s structures. Thirdly, the Plaintis are old and sickly individuals who have zero capacity for violence, intimidation or hostility against a giant conglomerate of the capacity of the Defendant and it is outrageous to accuse them of causing violence and intimidation. They want the Court to clarify whether the existing orders allow the Defendant to carry out the activities that they are complaining of against the Plaintis. For instance, it has admitted that it was conducting survey on 17-6-2026 when its surveyor was allegedly assaulted by the 1st Plainti. Why would the Defendant conduct a Survey on disputed land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5678/eng@2026-09-21 3

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5. Fourthly, the Defendant has always asserted that the orders of 30-6-2025 allowed it to do anything with the land owing to its phrasing to the eect that the Defendant shall continue with quiet possession and enjoyment pending the hearing and determination of the suit. This order allows the Defendant to deal with the suit land in any way that it wishes and Plaintis have no access on the land as the order is against them. It is the Plaintis whose lives have been threatened as it was in the case of Peter Ngugi, who reported to the police vide OB No. 71 of 12/6/2025 and No. 92 of 26/6/2025. The Defendant is overcondent that the suit will be decided in its favour and its looks like there will no room for consideration of the Plaintis evidence. Fifthly, the NEMA licences that the Defendant refers to are issued in favour of third parties and not to the Plaintis. The same applies to the one thousand (1000) employees who are in the employment of third parties and not the Plaintis’. Sixthly, the 1st Plainti has been to the suit land several times after she went there to complain about the demolition of their structures. The photograph exhibited by the Defendant is from one such incident. Seventhly, the 1st Plainti denies any assault on the Defendant’s security manager and this court should not punish her for a crime which she did not commit and which is still under police investigation. In the application dated 26-6-2025 the Plaintis also complained of assault against the Defendant and the Court did not take any action against the Defendant. Finally, the Defendant has been shifty by rst accusing the Plaintis in the notice of motion dated 3-7-2026 and later accused alleged unnamed agents, servants, employees and alleged persons acting under instructions as per paragraph 6 of the supplementary adavit of 24-7-2026. For the above and other reasons, she prays for the dismissal of the motion dated 3-7-2026. 6. The only submissions on record are those by the Defendant’s counsel. As late as 14-9-2026 the Plaintis’ counsel had not led any written submissions. The timeline given to the Plainti’s counsel was 14 days from 27-7-2026. 7. I have carefully considered the motion dated 3-7-2026 in its entirety including the grounds, the four adavits on record, the record and the Defendant’s written submissions. The Defendant has framed only one issue for determination as follows. a. Whether the Applicant’s application dated 3-7-2026 is merited. Under Order 15 rule 2 of the Civil Procedure Rules, I frame the following additional issues. 8. i. Whether the problem is the enforcement of the order dated 30-6-2025 or the need for a restatement of the said order. ii. Whether it is the Plaintis or their proxies who are quarrying on the suit land. iii. Whether the Plaintis’ application date 26-6-2025 was brushed o by the Court. iv. Whether it is proper for the Defendant to be surveying the disputed land without involving the Plaintis. Regarding the issue of enforcement and restatement of the order dated 30-6-2025, I nd that the problem is the enforcement and not the restatement of the order. The order dated 30-6-2025 is clear, unambiguous and unequivocal. It allowed prayers 4,5,7 and 9.The prayers were for an order of injunction restraining the Plaintis, their agents and anybody claiming through them from entering L.R. No. 12157/10 and carrying out quarrying activities or any other activities . The other prayer https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5678/eng@2026-09-21 4

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was for setting aside the orders issued on 10-2-2025 by Justice J. M. Onyango. There was the prayer for the summoning of the process server and nally the one requiring the OCS Ngati Police Station to enforce the orders issued by the Court. All those prayers having been allowed on 30-6-2025 need no restatement. All that they need is enforcement. The two adavits by the Managing Director of the Defendant as well as the Security Manager do not explain whether the OCS Ngati Police Station is reluctant to enforce the orders or he is unable to do so for whatever reason. Once the orders of 30-6-2025 are enforced in full, they will render prayers 4, 5 and 6 of the motion dated 3-7-2026 superuous. 9. Coming to the issue of whether it is the Plaintis or their proxies on the suit land carrying out the illegal quarrying, it is not disputed by both sides that there is ongoing quarrying on the suit land. While the Defendant blames the Plaintis the Plaintis blame the Defendant for the illegal quarrying. If the quarrying is on the part of the suit land that the Plaintis claim and they are not complaining, then the inference would be that they are the ones quarrying by proxy. If on the other hand the quarrying was on a part of the suit land not claimed by the Plaintis, then they would not be bothered. From the material before me, I am unable to determine where exactly the quarrying is happening because neither the Plaintis nor the Defendants have stated exactly where the quarrying is taking place. There is however a possibility that other parties and not necessarily the Plaintis are engaged in the illegal quarrying. Whatever the case, however, once the orders of 30-6-2025 are enforced, it will not matter when it is the Plaintis or their proxies or third parties engaging in the illegal quarrying because all of them will be evicted. 10. Looking at the issue of the Plainti’s application dated 26-6-2025, it came up for mention on 27-6-2025. The Court gave directions that it be mentioned on 30-6-2025. This was the date of the ruling. The application by the Plaintis sought to enforce the order dated 27-2-2025. The order sought to be enforced was the subject of the ruling on 30-6-2025. It could only be enforced if it withstood the ruling of 30-6-2025. It did not withstand the ruling of 30-6-2025 because it was set aside. The Plaintis should have awaited the ruling of 30-6-2025 rather than le the application dated 26-6-2025 on the eve of the impending ruling four days later. The Plaintis’ application died a natural death the moment the order it was anchored on was set aside. That is why the Plaintis’ counsel did not pursue the application. 11. As for the survey of the suit land when the suit is pending, I nd that it is admitted by the Defendant vide paragraph 18 of the adavit by Nicholas Kimani dated 24-7-2026 that on 17-6-2026, Simon Mutuku, the Defendant’s internal surveyor was placing boundary markings. I am not sure what that means precisely but it is expected that if there will be a boundary determination between the plaintis’ land and the Defendant’s land, it will be a Court guided exercise which will be conducted by District Surveyor and the District Land Registrar in the presence of both parties. It is not therefore contemplated that the Defendant is carrying out a survey of the disputed land in the absence of the Plaintis or their representatives. 12. Before I determine the issue raised by the Defendant’s counsel, I make the following observations. One, under Order 40 rule 6 of the Civil Procedure Rules, an interlocutory injunction is not envisaged to last for more than twelve (12) months. In this case, it has lasted for almost fteen (15) months. It is however noted that it is not the Defendant delaying the quick resolution of this dispute. The culprits are the Plaintis. The Defendant has always complained of the slow pace of the case. The reason given for the slow pace is that the 1st Plainti was abroad for treatment. The court has always excused this and the defence has been very understanding. I believe that there will be no excuse for any further delay in the conclusion of this matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5678/eng@2026-09-21 5

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13. Finally on the issue framed by the Defendant’s counsel, I nd as follows. Yes, the Defendant’s application dated 3-7-2026 is merited in as far as it seeks to enforce the orders of 30-6-2025 against all and any of the illegal invaders of the suit land but not against the eight (8) Plaintis. The only evidence to connect the eight Plaintis with the illegal quarrying on the suit land is the photograph annexed to the supplementary adavit of Nicholas Kimani dated 24-7-2026. There is no evidence that the part of the suit land where the illegal quarrying is taking place is the one claimed by the Plaintis. There is therefore a likelihood that other people who are unknown to the Plaintis have invaded the suit land to carry out illegal quarrying. The identities of these illegal miners remains unclear as is their connection to the Plaintis. The 1st Plaintis has vehemently denied that the Photograph was taken recently. Her explanation is that it is from an earlier visit to the land to complain about the demolition of her structures. The Defendant bears a burden of proof that is heavier than the burden in ordinary civil cases whose standard is on a margin of probabilities. In this case, the burden is heavier owning to the quasi criminal nature of contempt proceedings. The fact that the Plaintis could be committed to prison means that the Court will only nd them liable where there is cogent evidence proving that they and nobody else is responsible for the illegal quarrying on the suit land. The moment the court entertains the possibility that other parties and not necessarily the Plaintis are involved, than a nding of contempt on the part of the Plaintis will not be made. The authority of Shimmers Plaza Ltd. vs National Bank of Kenya [2015] eKRL, cited by the Defendant’s counsel in his submissions dated 3-8-2026 is spot on in regard to the burden on the Defendant which is not as high as in Criminal cases, that is to say, beyond reasonable, but which is higher than a margin of probabilities. 14. In conclusion and for the reasons given, the notice of motion dated 3-7-2026 is allowed in the following terms. a. The orders dated 30-6-2025 to be enforced by the OCS Ngati Police Station. b. All illegal quarries on the suit land to close down and all trespassers thereon to be arrested and brought before this Court or to be charged in other Courts, as is appropriate. c. Prayers 2 and 3 not allowed for reasons already given. d. Mention on 4-11-2026 to monitor compliance with orders numbers (a) and (b) above. e. This case to be heard and concluded within (6) months. f. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 21ST DAY OF SEPTEMBER, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistants– Antony Plainti’s Counsel – Mr. Mwenesi Defendant’s Counsel – Mr Odour https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5678/eng@2026-09-21 6

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