Munke & 2 others v Ben & 2 others

d) In the event of ultimate non-compliance with the court order requiring depositing of the Trust Deed, the Court be pleased to deny the Respondents audience before this Court and/or to draw an adverse interference against the Respondents, with regard to the contents of the Trust Deed. e) The cost of this Application be borne by the Respondents. 2. This Application is premised on the following grounds and supported by the sworn affidavit of Leakey Loshe Munke dated 20.07.2026; a) On 03.02.2026, this Court issued an order directing the Respondents to deposit the Trust Deed before the Court for further directions pending the hearing and determination of the petition. b) The order was served upon the legal representatives of the Respondents, being the firm of Tawo, Maito, & Co. Advocates. c) Despite having full knowledge of the Order, the Respondents have willfully disobeyed the Order by failing/neglecting, and/or refusing to deposit the Trust Deed as directed by the Court. d) Whereas the Respondents have attended Court for directions on diverse dates being 17.02.2026, 05.03.2026, 05.05.2026, 05.06.2026 and 18.06.2026, they have willfully persisted in their non-compliance with the Court Order. e) The matters alluded to above disclose a case of blatant contempt of court orders on the part of the Respondents, and it is therefore imperative that the Respondents be cited for contempt of Court and thereafter punished accordingly. Court orders are not issued in vain, and require strict compliance. P a g e 2 | 11

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f) It is therefore necessary to uphold the dignity and authority of this court and the rule of law by having the Respondents punished for contempt of court. g) It is fair and just to grant the orders sought in order to maintain public confidence in the administration of justice as administered by the court. 3. The Respondents replied to the Notice of Motion vide a Replying Affidavit dated 23.07.2026 and sworn by Longisa Leluat Ben, the 1st Respondent herein, and on behalf of the 2nd and 3rd Respondents and deponed as follows; a) That it is indeed true that the Petitioners/Applicants filed the instant Petition and Application both dated 05.01.2026 under Certificate of Urgency before the High Court of Kenya sitting at Kilgoris. b) That in the said Application, the Petitioners sought interim orders contained therein among them an order directing the Respondents to deposit the Trust Deed before the Court for further directions pending the hearing and determination of this Petition. c) That the Respondents filed a Replying Affidavit dated 03.03.2026 contesting the Jurisdiction of this Honourable Court. d) That the Honourable Court proceeded to render a determination on the issue of Jurisdiction on 05.06.2026 ruling that it lacked Jurisdiction to entertain both the Application and the Petition. e) The Respondents depone that Jurisdiction is everything and without which the Court must down its tools. Further, any interim or P a g e 3 | 11

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conservatory orders granted by a court without jurisdiction are fundamentally null and void. f) The Petitioners have not moved this Honourable Court for interim orders of 17.02.2026 had lapsed when a Ruling on Notice of Motion dated 19.01.2026 was rendered. g) That the interim orders were only binding pending the hearing and determination of the Notice of Motion dated 19.01.2026. h) That, the Petition was transferred to this Honourable Court and the Petitioners did not appropriately move this Honourable court to issue any interim orders and the Respondents are not aware of the existence of any Interim orders. i) In response to the Instant Notice of Motion, the issue of noncompliance with the orders of the court was never raised by the Petitioners, nor their counsel during the pendency of the matter before the High Court of Kenya because the court had to make a decision on the issue of Jurisdiction which was raised by the Respondents. j) That the Applicants are not acting in good faith and the present application is calculated to punish the Respondents using unorthodox means in an attempt to intimidate them. k) That in the interest of justice, the Appellants Notice of Motion dated 20.07.2026 be dismissed with costs to the Respondents. 4. The Petitioners filed a further affidavit in response to the Replying Affidavit dated 23.07.2026 sworn by Leakey Loshe Munke dated 24.07.2026 deponing as follows; P a g e 4 | 11

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a) The Application is a legitimate and necessary invocation of the contempt jurisdiction of this court, occasioned solely by the Respondents’ own persistent non-compliance with a subsisting court order issued on 03.02.2026. b) The Petitioners seek to clarify that the Applicants’ Application for Injunction is dated 19.01.2026 and not 05.01.2026. c) The Ruling delivered on 05.06.2026 determined only that the High Court lacked jurisdiction to entertain the petition and Application for Injunction on their merits, and accordingly referred the matter to this Honourable Court, Environment and Land Court at Kilgoris, for determination. The said Ruling never reviewed, varied, discharged, nor set aside the Order of 03.02.2026 directing deposit of the Trust Deed, nor did it purport to do so. d) The Petition and Application for injunction were not struck out or dismissed; they remain live and are simply now properly before this court. e) At no point in time did the Respondents contend that the ensuing Directions were of no consequence or in respect of a non-existent Application, by reason of the Ruling delivered on 05.06.2026. Indeed, the Respondents have acted in furtherance of the said Directions by filing and deserving a Replying Affidavit and therefore cannot take inconsistent positions within the same proceedings. f) It is not for a party to choose whether to comply with an Order of court; the remedy of a party aggrieved by an order, including an order later found to have been made without jurisdiction, is to apply P a g e 5 | 11

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to set it aside, vary it, or appeal against it, and not to willfully disobey it. The Respondents have not applied to have the order reviewed, set aside, stayed, or appealed. The Order therefore remains to date, valid, subsisting and binding upon the Respondents. g) The Respondents are neither remorseful nor contrite for their willful disobedience of Court Orders and this Court should not countenance their conduct. h) It is in the interest of justice for this Honourable Court to allow the Applicants’ Notice of Motion dated 20.07.2026. Petitioners/Applicants’ submissions Mr.Mbaluto learned counsel for the Applicant submitted that there existed a valid court order which had been exhibited as LLM 2 which order required that the Respondents to deposit the Trust deed in court and that they had been no compliance with the said order yet there was no discharge of the orders sought. He further submitted that although the matter was transferred the Learned Judge did not indicate that the orders had been set aside. that court orders is not a suggestion and it ought to be complied with. Reliance was placed on the decision in the case of Econet Wireless vs Minister for Information 2005 eklr for the proposition that every person has a duty to Obey Court orders and that the court should deny the Respondents’ audience. Respondents’ Submissions P a g e 6 | 11

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5. On his part Mr. Maito learned counsel for the respondents placed reliance on the Replying Affidavit dated 25/7/2026 and submitted that as the High Court determined that it had no jurisdiction which Jurisdiction is everything as observed in Owners of Motor Vesssel Lilian S thus in so far as the interim reliefs were issued by a court without jurisdiction the same were a nullity. In support of this limb of submissions the Respondents relied on the decision in the case of Mohamed Abdi Mohammed vs Ahmed Mohammed. The Respondent thus urged the Court to dismiss the Application as there were no valid orders in existence which were defied. After his submissions Mr. Maito sought leave of the court to file a list of Authorities. 6. In a brief rejoinder Mr. Mbaluto learned counsel for the Applicant submitted that list of authorities could not be filed after the fact and that the order was absolute in nature that required no extension and that the orders were still in force pursuant to the transfer as the issues that remained for determination were captured at paragraph 73 of the Ruling dated 5.6.2026 thus the matter would not be starting denovo as directions were issued on the subsisting application. 7. Arising from the Application, the rival affidavits and submissions and upon consideration of the law, the court frames two preliminary and 3 substantive issues for determination. 8. The preliminary issue, being (i) Whether or not list of Authorities could be filed after the submissions, and the (ii) Import of the transfer of this matter to this court. 9. On the substantive issues, for determination the court shall determine; P a g e 7 | 11

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(i) Whether or not the Respondents defied the orders requiring the delivery of the Trust deed in court hence are they contempt of court? In determining this issue the court shall equally determine a fundamental but related issue as to whether the said orders which are said to be defied are indeed alive in view of the Ruling delivered on 05.06.2026. 10. (ii) What reliefs ought to issue. (iii) Who bears the costs of the application. On the first two preliminary issues the court agrees with Mr. Mbaluto that a party cannot seek to file a list of authorities after arguing their application, when no reference was made to the said authorities, as this would deny the opposing party a chance to rebut and/or distinguish the said authorities in the course of their submissions. Consequently, the court shall not consider the Authorities that Mr. Maito sought to file after the fact, save for the decision in Owners of Motor Vessel Lilian ‘S’ as well as the decision in Mohammed Abdi Mohammed Vs. Ahmed Mohammed that Mr. Maito relied on during his submissions 11. On the transfer of the matter to this court once the High Court had determined it had no jurisdiction, the transfer was an administrative action under the inherent powers of the court vide section 3A of the Civil Procedure Act, upon the said transfer this court ELC is now properly seized of the petition and the pending application and it ought to issue directions on the pending application as well as the petition, as the matter deemed to have started denovo in light to the findings that the High Court had no jurisdiction to handle the matters raised in their petition which were reserved for the ELC. 12. Hence, the matter shall start denovo as per the directions to be issued in this Ruling. 13. On the substantive issues herein, it is the Applicant’s contention relying on the decision in Econet Wireless Limited Vs. Minister for Information that the Respondent were under a duty to obey the order even if they believed the same to be invalid. P a g e 8 | 11

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14. The Respondent on their part submit that the orders that are said to have been defied were issued without jurisdiction hence were a nullity and upon transfer of the matter to this court, the orders ceased to exist and hence no contempt of court has arisen. 15. Indeed, as was observed in the decision of Owners of Motor Vessel Lilian ‘S’ “Jurisdiction is everything, without it a court cannot take one step…” 16. Having found that it had no jurisdiction, it follows that the orders initially issued by the High Court at Kilgoris were issued without jurisdiction and were a nullity as was held in Mcfoy Vs. United Africa where the court held, “When an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado though sometimes convenient to have the court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there it will collapse…” 17. It follows therefrom that the orders said to have been defied were a nullity in view of the fact that they were issued without jurisdiction. 18. The court shall now consider the Applicable law on contempt so as to determine whether there was defiance of the court orders by the Respondents. 19. The ingredients to be proved for an application for contempt of court to succeed were stated in the decision in the case of Samuel M.N. Mweru and Others Vs. National Land Commission and 2 Others, where at paragraph 40 Mativo J. (as he then was) observed as follows; “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. P a g e 9 | 11

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(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.” 20. 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; (i) “The terms of the order or injunction or undertaking were clear and unambiguous and were binding on the defendant. (ii) The defendant had knowledge of or proper service of the terms of the order. (iii) The defendant has acted in breach of the terms of the order and defendants conduct was deliberate.” 21. Now applying to the said principles in this application, the court finds that terms of the order were clear and unambiguous and the order was made in the presence of the Defendants Advocates and the defendant is in breach of the order, having not surrendered the Trust deed as had been dwelled. 22. Whereas the decision in Econet Wireless Ltd cited by the Applicant gives the scope of contempt to include where the person affected by an order believes it to be irregular or void, the Samuel M.N. Mweru decision gives the applicable principles for contempt of court and allows a contemnor to adduce evidence to rebut the contempt. 23. The Samuel M.N Mweru decision is a later decision that equally cites the Econet Wireless decision and thus gives the current position of the law on contempt OF CONTEMPT. 24. The Respondent by contending that the court order was invalid by reason that it was issued by a court without jurisdiction, rebutted the element deliberate defiance, and the court finds that the contempt of court against the Respondent has not been proven, as Respondent has P a g e 10 | 11

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proven that there was no valid order and the court agrees, having proven no existence of a valid order, the issue of the belief of irregularity or otherwise of the order does not exist. 25. Thus, in answer to issue No. 1, the court finds that the Applicant has not proven the contempt of court against the Respondents. 26. On what reliefs ought to issue, the ordinary course to follow would dismiss the application which the court hereby does, but noting that the court has earlier found that the pending application ought to have started denovo upon transfer to this court and that the orders issued ex-parte were issued without jurisdiction. The court hereby issues the following directions in respect of the matter and the pending application. (i) Prayer 2 of the application dated 19 th of January 2026 is allowed in the interim. (ii) Directions issued on 18.06.2026 with respect to the application dated 19.01.2026 are retained but varied to the extent that the Applicant is at liberty to file Supplementary submissions to address the issue of the deposit of the Trust deed in court being prayer 3 of the pending Application. 27. In the meantime, the Application dated 20.07.2026 is dismissed with costs in the cause. Dated at Kilgoris this 17th day of September, 2026. Hon. M.N Mwanyale Judge In the presence of CA Sylvia/Clara Ms. Mwangi and Mr. Odhiambo for the Petitioners/Applicants Mr. Murgor S.C together with Mr. Maito and Ms. Kala for the Respondents P a g e 11 | 11

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