Jannah Properties Limited v National Environment Management Authority & 5 Others; Principal Secretary, State Department of Defence & 3 Others (Interested Parties)

THE HONOURABLE ATTORNEY GENERAL………………6TH RESPONDENT PRINCIPAL SECRETARY, STATE DEPARTMENT INTERESTED PARTY OF NAIROBI COMMISSION…………………….2ND RIVERS DEFENCE…………………1ST INTERESTED PARTY REGIONAL COMMANDER NAIROBI, NATIONAL POLICE SERVICE…………………………3RD INTERESTED PARTY REGIONAL COMMISSIONER NAIROBI…………….4TH INTERESTED PARTY RULING 1. By a Notice of Motion dated 6th May 2026, brought under Section 5(1) of the Judicature Act, Section 3A of the Civil Procedure Act, and Orders 51 Rule 1 and 52 Rule 3 of the Rules of the Supreme Court of England, the Applicant seeks the following orders: a) Spent. b) THAT THIS Honourable Court be pleased to find that Environment ELC PETITION NO. E039 OF 2024 the 1st Respondent, Management National Authority, is in 2

page 2 of 26

contempt of court for wilful disobedience of the orders issued by this Honourable Court on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. c) THAT upon the grant of Order (2) above, this Honourable Court be pleased to order the Chief Executive Officer of the 1st Respondent to show cause why he should not be committed to civil jail for failure to obey the Orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. d) THAT this Honourable Court be pleased to issue an order of Committal against the Chief Executive Officer of the 1st Respondent, National Environment Management Authority, for committal to civil jail in contempt for disobedience Orders for of such this Honourable period of time Court's as this Honourable Court may deem fit and just. ELC PETITION NO. E039 OF 2024 3

page 3 of 26

e) THAT this Honourable Court be pleased to find that the 2nd Respondent, Water Resource Authority, is in contempt of Court for wilful disobedience of the Orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. f) THAT upon grant of order (5) above, this Honourable Court be pleased to order the Chief Executive Officer of the 2nd Respondent to show cause why he should not be committed to civil jail for failure to obey the Orders of this Honourable Court issued on 9 th July 2024 and 16th April 2026. g) THAT this Honourable Court be pleased to issue an order of Committal against the Chief Executive Officer of the 2nd Respondent, Water Resource Authority, for committal to civil jail in contempt for disobedience of the orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. ELC PETITION NO. E039 OF 2024 4

page 4 of 26

h) THAT upon grant of Order (8) above, this Honourable Court be pleased to order the County Executive Member, Built Environment and Urban Planning of the 3 rd Respondent, Nairobi City County, for committal to civil jail in contempt for disobedience of this Honourable Court's Orders for such period of time as this Honourable Court may deem fit and just. i) THAT this Honourable Court be pleased to find that the 4th Respondent, Ministry of Interior and Coordination of National Government, is in contempt of Court for wilful disobedience of the orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. j) THAT upon grant of order (11) above, this Honourable Court be pleased to order the Principal Secretary of the 4th Respondent, Ministry ELC PETITION NO. E039 OF 2024 of Interior and Coordination of 5

page 5 of 26

National Government, for committal to civil jail in contempt for disobedience of this Honourable Court's orders for such period of time as this Honourable Court may deem fit and just. k) THAT this Honourable Court be pleased to find that the 5th Respondent, The Inspector General of the National Police Service, is in contempt for wilful disobedience of the orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. l) THAT upon grant of Order (14) above, this Honourable Court be pleased to order the 5th Respondent to show cause why he should not be committed to civil jail for failure to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. m)THAT this Honourable Court be pleased to issue an order of Committal against the 5 th Respondent, The Inspector General of the ELC PETITION NO. E039 OF 2024 6

page 6 of 26

National Police Service for committal to civil jail for failure to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. n) THAT this Honourable Court be pleased to find that the 1st Interested Party, Principal Secretary, State Department for Defence is in contempt of Court for wilful disobedience of the orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. o) THAT upon the grant of Order (17) above, this Honourable Court be pleased to order the 1st Interested Party to show cause why he should not be committed to civil jail for failure to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. p) THAT the Honourable Court be pleased to issue ELC PETITION NO. E039 OF 2024 an order of Committal against the 7

page 7 of 26

Principal Secretary, State Department for Defence, for committal to civil jail in contempt for disobedience of this Honourable Court's orders for such period of time as this Honourable Court may deem fit and just. q) THAT this Honourable Court be pleased to find that the 2nd Interested Party, Nairobi Rivers Commission, is in contempt of Court for wilful disobedience of the orders issued on 9 th July 2024 and 16th April 2026 and mete an appropriate punishment. r) THAT upon the grant of Order (20) above, this Honourable Court be pleased to order the Chief Executive Officer of the 2nd Interested Party to show cause why he should not be committed to civil jail to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. s) THAT this Honourable Court be pleased to issue a Committal Order against the Chief ELC PETITION NO. E039 OF 2024 8

page 8 of 26

Executive Officer, Nairobi Rivers Commission, for committal to civil jail in contempt for disobedience Orders for of this such Honourable period of time Court's as this Honourable Court may deem fit and just. t) THAT this Honourable Court be pleased to find that the 3rd Commander, Interested Nairobi Police Party, Regional Service, is in contempt of Court for wilful disobedience of the orders issued on 9th July 2024 and 16th April 2026 and mete an appropriate punishment. u) THAT upon the grant of Order (23) above, this Honourable Court be pleased to order the 3 rd Interested Party to show cause why he should not be committed to civil jail for failure to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. v) THAT this Honourable Court be pleased to issue ELC PETITION NO. E039 OF 2024 an order of Committal against the 9

page 9 of 26

Regional Commander, Nairobi, National Police Service, for committal to civil jail in contempt for disobedience of this Honourable Court Order for such period of time as this Honourable Court may deem fit and just. w) THAT this Honourable Court be pleased to find the 4th Interested Party. Regional Commissioner, Nairobi is in contempt of Court for wilful disobedience of the Order issued on 9th July 2024 and 16th April 2025 and mete an appropriate punishment. x) THAT upon the grant of Order (26) above, this Honourable Court be pleased to order the 4th Interested Party to show cause why he should not be committed to civil jail for failure to obey the orders of this Honourable Court issued on 9th July 2024 and 16th April 2026. y) THAT the costs of this application be borne by the Respondents and Interested Parties. ELC PETITION NO. E039 OF 2024 10

page 10 of 26

2. The application is based on the grounds appearing on its face together with the supporting affidavit of Faith Wambui Njuguna, the Petitioner’s Property Manager, sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that on 9 th July 2024, the Court issued orders preserving the status quo in respect of L.R No. 209/1887 (Original L.R No. 209/16329), the suit property herein. She further averred that on 17 th February 2026, the 2nd Respondent issued an enforcement notice alleging encroachment and demanding the removal of structures within fourteen (14) days, thereby breaching the status quo orders. 4. She further averred that, by a letter dated 9 th March 2026, the 2nd Respondent wrote to the Applicant’s advocates, acknowledging that the Enforcement Notice of 17 th February 2026 had been issued in error and confirming its withdrawal. The letter also confirmed that the sub-basin area chief had been instructed to suspend all administrative enforcement measures. ELC PETITION NO. E039 OF 2024 11

page 11 of 26

5. She deposed that despite the existing court orders and the formal withdrawal of the Enforcement Notice, a multi-agency team entered the suit property on 14th April 2026 and began demolishing sections of the perimeter wall. 6. She asserted that this Court issued further interim conservatory orders on 16th April 2026, restraining the Respondents from entering, removing, demolishing or interfering with the developments on the suit property. She maintained that, despite having sufficient knowledge of and notice of the orders, the Respondents, the Interested Parties, and the multi-agency enforcement team repeatedly invaded the suit property on various dates after April 2026 and carried out demolitions in deliberate and wilful disobedience of the Court orders. 7. She asserted that the continued disobedience of the Court's orders is intentional and systematic, intended to defeat the administration of justice and render the Petition nugatory. She stated that unless the Court intervenes urgently, the Respondents' actions will irreversibly alter the substratum of the dispute, rendering any eventual determination illusory. ELC PETITION NO. E039 OF 2024 12

page 12 of 26

8. She asserted that it is necessary to commit the designated officers of the Respondents and the Interested Parties to civil jail to uphold the authority and dignity of this Court. 9. In conclusion, she urged the Court to find the Respondents and the Interested Parties in contempt of the Court’s orders and to hold them liable for contempt. THE 1ST RESPONDENT’S CASE 10. The 1st Respondent opposed the application through the replying affidavit sworn by Mamo B Mamo on 25 th May 2026. 11. The deponent averred that the 1 st Respondent’s statutory mandate, as established under Section 9 of the Environmental Management and Coordination Act, is supervisory and does not authorize it to carry out the physical demolition of structures. He further averred that the 1st Respondent lacks authority to delineate and demarcate riparian reserves. He acknowledged the orders issued on 9th July 2024 and asserted that the 1 st Respondent fully complied with these orders. He further asserted that the 1st Respondent neither issued the impugned demolition directives nor participated in the demolition activities carried out on the suit property. ELC PETITION NO. E039 OF 2024 13

page 13 of 26

12. He asserted that the 1st Respondent is not in breach of any Court orders. In conclusion, urged the Court to dismiss the application with costs. THE 3RD RESPONDENT’S CASE 13. The 3rd Respondent filed a replying affidavit sworn on 6th August 2026 by Wilfred Wnayonyi Masinde, the Deputy Director, Development Inspection and Planning, in opposition to the application. 14. The deponent contended that the 3rd Respondent neither initiated, authorised, supervised nor participated in the alleged demolitions. He further contended that the Applicant failed to adduce evidence demonstrating that the 3rd Respondent was part of the multi-agency team involved in the demolitions. It was further argued that the Applicant had made generalised allegations against all Respondents without identifying any specific act, omission or decision attributable to the 3 rd Respondent. 15. The deponent further contended that the assertion that the 3rd Respondent issued development approvals did not, in itself, establish that the suit property does not fall within a riparian ELC PETITION NO. E039 OF 2024 14

page 14 of 26

reserve or demonstrate that it participated in the subsequent demolitions THE 4TH, 5TH AND 6TH RESPONDENTS AND INTERESTED PARTIES CASE 16. The 4th, 5th and 6th Respondents and the Interested Parties opposed the application by way of grounds of opposition dated 26th June 2026. They contended that the application is speculative as the Applicant failed to adduce evidence showing that they participated in the alleged demolitions on the suit property. They further argued that the application offends Articles 50(1) and (2), read with Article 25(c) of the Constitution, as the contempt application was not personally served upon the individual officers sought to be committed. They asserted that the application is procedurally defective as it seeks contempt orders against public offices rather than against the cited individuals. They maintained that the Applicant has failed to meet the threshold for the grant of the orders sought and urged the Court to dismiss the application with costs. ELC PETITION NO. E039 OF 2024 15

page 15 of 26

17. The Applicant filed its submissions dated 11 th September 2026 which I have duly considered. ANALYSIS AND DETERMINATION 18. Having considered the application and the responses thereto, the only issue for determination is whether the Applicant is entitled to the orders sought. 19. The Applicants seek to have the Respondents and the Interested Parties cited for contempt of Court's orders. Black's Law Dictionary, 9th Edition, defines contempt of court as: “conduct that defies the authority or dignity of the court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.” 20. Section 5 of the Judicature Act provides that: 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 such power shall extend to upholding the authority and dignity of subordinate courts. ELC PETITION NO. E039 OF 2024 16

page 16 of 26

2) An order of the High Court made by way of punishment for appealable as contempt if it were of court shall a conviction be and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court. 21. In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another (2005) eKLR, the Court observed: “It is essential for the maintenance of the Rule of Law and order that the authority and dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect to whom an order is made by the court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases ELC PETITION NO. E039 OF 2024 17

page 17 of 26

where the person affected by an order believes it to be irregular or void.” 22. The law applicable to this application is Order 40 Rule 3(1) of the Civil Procedure Rules, which provides as follows: In cases of disobedience, or of breach of any such terms, the Court, granting an injunction, may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. 23. In Carla Burchell v Barry Grant Burchell, Eastern Cape Division, Case No 364 of 2005, the High Court of South Africa held that, to succeed in civil contempt proceedings, an Applicant must prove: i) The terms of the order ii) Knowledge of these terms by the respondent iii) Failure by the respondents to comply with the terms of the order. ELC PETITION NO. E039 OF 2024 18

page 18 of 26

24. In Samuel M.N. Mweru & Others v National Land Commission & 2 Others (2020) e KLR, the Court set out the elements that must be established in an application for contempt of court as follows: “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 knowledge. ELC PETITION NO. E039 OF 2024 19

page 19 of 26

c) The defendant has acted in breach of the terms of the order and d) The defendant’s conduct was deliberate”. 25. The first issue for determination is whether the terms of the orders were clear. It is not in dispute that on 9 th July 2024 this Court issued a status quo order in the following terms: “That the application is compromised through the issuance of the status quo orders issued herewith, meaning that the suit property should not be alienated in any way, whether through sale, transfer, construction, demolition or in any other way, as to jeopardize the title till the instant Petition is heard and determined.” 26. The Court subsequently issued interim orders on 16 th April 2026, restraining the Respondents jointly and severally whether by themselves, their agents, employees and/or through any multi agency team from entering upon L.R No. 209/21887(Original Title No. 209/16329) and demolishing, damaging, removing or in any way interfering with any structures and/or development. ELC PETITION NO. E039 OF 2024 20

page 20 of 26

27. The orders were unambiguous, as they clearly directed the preservation of the status quo and set out the prohibited conduct. Accordingly, I find that the orders issued on 9th July 2024 and 16th April 2026 were clear and unambiguous. 28. The next issue for determination is whether the Respondents and the Interested Parties were served with or had proper notice of the order. 29. The 1st Respondent acknowledged the order dated 9 th July 2024 and stated that it had fully complied with it. It asserted that its mandate is strictly supervisory and denied participating in or issuing the demolition directives. The 4 th to 6th Respondents and the Interested Parties contend that they were not personally served with the application. 30. In contempt proceedings where committal is sought, the alleged contemnor must be specifically identified, joined and served in their personal capacity, as individual liberty is at stake. Public institutions and statutory bodies act only through natural persons, and when penal consequences are sought, the individual responsible must be clearly named and afforded an opportunity to respond. ELC PETITION NO. E039 OF 2024 21

page 21 of 26

31. In Republic v Principal Secretary, Ministry of Defence, ex parte George Kariuki Waithaka (2019) eKLR, the Court held that: “Where an order of committal is sought, the alleged contemnor must be personally cited, served, and given an opportunity to show cause since the proceedings are penal in nature.” 32. Similarly, in Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR, the Court held that: “Orders of committal affect personal liberty and must therefore strictly comply with procedural safeguards.” 33. It is not in dispute that the chief executive officers and the public officers alleged to be in contempt were neither joined in their individual capacities nor served with the application, the grounds, or notice of committal. These omissions are not mere technicalities. They go to the heart of the application and offend the principles of natural justice. 34. Regarding whether the Respondents and the Interested Parties deliberately breached the court orders, the Applicant bears the burden of proving its case on a balance of probabilities. This is because contempt of court is in the nature of criminal proceedings, and the subject's liberty is usually at ELC PETITION NO. E039 OF 2024 22

page 22 of 26

stake. To succeed in contempt proceedings, the Applicant must prove wilful and deliberate disobedience of the Court. In Gatharia K. Mutikika v Baharini Farm Ltd (1985) KLR, the Court held that: “A contempt of court is an offence of a criminal nature. A man may be sent to prison. It must be proved satisfactorily…..It must be higher than prove on a balance of probabilities, almost but not exactly standard of beyond proof reasonable beyond doubt. reasonable The doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal nature.” 35. In Peter K. Yego & Others vs Pauline Wekesa Kode ACC NO. 194 of 2014, the Court held that: “It must be proved that one had actually disobeyed the court order before being cited for contempt.” 36. Regarding whether the Respondents and the Interested Parties deliberately disobeyed the Court orders, the Applicant ELC PETITION NO. E039 OF 2024 23

page 23 of 26

contends that on 14th April 2026, a multi-agency team invaded the suit property and demolished sections of the perimeter wall. The order was therefore in force when the alleged demolition occurred on 14th April 2026. The Applicant further contends that, notwithstanding the subsisting order, the Respondents, Interested Parties, and the Multi-Agency enforcement team continued to enter the suit property and carry out demolitions. The demolition is alleged to have occurred on 14th April 2026, after the 2nd Respondent had withdrawn its Enforcement Notice dated 17 th February 2026 and confirmed that administrative enforcement measures had been suspended. The Court finds that the demolition of the suit property while the orders were subsisting constituted a breach of those orders and was therefore an act amounting to contempt of court. 37. The subsequent entry onto the suit property and the demolition, while the status quo and interim orders remained in force, were therefore not acts undertaken in ignorance of an existing order. On the evidence presented, the disobedience of the orders was wilful and deliberate. ELC PETITION NO. E039 OF 2024 24

page 24 of 26

38. The Court is called upon to determine whether the Respondents and the Interested Parties are in contempt of the court orders. The Applicant has not placed before the Court evidence sufficiently linking each alleged contemnor to the acts complained of. The Applicant’s generalised assertions that a multi-agency team carried out the demolition do not, without evidence pinning responsibility on specific officers, automatically establish liability against each of the cited Respondents and Interested Parties. 39. The application identifies the offices of the persons sought to be committed to civil jail. However, the evidence before the Court does not sufficiently particularise the individual acts of disobedience attributable to each of them. Without evidence of participation, this Court finds that the Applicant has failed to demonstrate that the individual office-holders disobeyed the orders. 40. Although the Court is satisfied that the order of 9 th July 2024 was breached, the evidence does not establish to the requisite standard that each of the persons sought to be committed personally participated in, authorised, or directed the breach. ELC PETITION NO. E039 OF 2024 25

page 25 of 26

Consequently, I decline the prayer for committal to civil jail of the named office holders. 41. In the end, I find that the application dated 6 th May 2026 is without merit and is hereby dismissed with no order as to costs. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER, 2026. ................................... T. MURIGI JUDGE IN THE PRESENCE OF: Ms Ndoigo holding brief for Mumia for the Petitioner/Applicant Ganya for the 1st Respondent Ms Makorri holding brief for Ms Olewe for the 2 nd Respondent Ms Kubai for the 4th – 6th Respondents and the Interested Parties Vena-Court assistant ELC PETITION NO. E039 OF 2024 26

page 26 of 26