Katana Kalume Kipuru v County Executive Committee Member – Lands, Urban Planning & Housing & 2 others

together to this point and all three are to be laid to rest in a single Ruling. 2. By a Notice of Motion dated 25th May 2026, brought under certificate of urgency, the Plaintiff sought temporary injunctive orders restraining the Defendants from demolishing, or in any way interfering with, developments standing on Plot No. Mombasa/Block XII/143 and Plot No. Mombasa/Block XII/69 (the suit properties), pending the hearing and determination of the application and, thereafter, of the suit. He deposed that he became registered proprietor of the two parcels on 7th July 1981 and 19th January 1979 respectively, that he had been in occupation from those dates to date, and that on 22nd May 2026 he received demolition notices which, as he understood them, required immediate compliance. 3. On 2nd June 2026, the Court, satisfied of the urgency, granted a temporary injunction for fourteen days in terms of prayers 1 and 2 of that Motion, and directed the parties to appear for a mention on 16th June 2026. The interim orders were thereafter extended, and the substantive injunction application was fixed for ruling on 24th September 2026. 4. Between the grant of the interim orders and the date fixed for ruling, the matter took a turbulent course. The RULING: ELCLC/E059/2026 Page 2 of 32

page 2 of 32

Defendants filed an application dated 15th June 2026 seeking to vacate the interim orders, but withdrew it without prosecuting it to hearing. They then filed a second application dated 16th June 2026 seeking similar relief and, in the alternative, leave to enforce a demolition notice touching on Plot No. Mombasa/Block XII/169. On 18th June 2026, the Court certified that application urgent, directed service and responses, fixed it for inter partes hearing on 7th July 2026 and maintained the interim orders. Before that hearing could take place, the Defendants withdrew the second application as well. 5. It was against this backdrop that, on 2nd July 2026, the Defendants demolished a building standing on land the Plaintiff says forms part of the suit properties. The Plaintiff, aggrieved, filed a Notice of Motion dated 3rd July 2026 seeking to have Hon. Mohamed Hussein Mohamed, the Mombasa County Executive Committee Member for Lands, Urban Planning, Housing and Serikali Mtaani, and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa County, summoned to show cause why they should not be cited and punished for contempt of the orders of 2nd June 2026, or, in the alternative, committed to civil jail, surcharged personally, and declared unfit to hold public office. The Court, moved ex parte on 6th July 2026, directed that summons issue accordingly. 6. The 3rd Defendant responded with a Notice of Motion dated 9th July 2026 seeking a stay, review and setting RULING: ELCLC/E059/2026 Page 3 of 32

page 3 of 32

aside of the order directing summons to issue, and a consequential discharge of the summons, on the footing that the enforcement complained of was undertaken exclusively on Plot No. Mombasa/Block XII/169, a parcel it says is separate and distinct from Plot Nos. XII/69 and XII/143, and never protected by the injunction of 2nd June 2026. All three applications are now ripe for determination, and I take them together, for they are woven from the same thread of fact. B. THE APPLICATIONS AND PRAYERS The Notice of Motion dated 25th May 2026. 7. The application was based on the grounds set out on the face of the application and the contents of the supporting affidavit sworn by Katana Kalume Kipuru on 25th May 2026. The Plaintiff sought the following orders: a. That the Application be certified as urgent and admitted for hearing ex parte in the first instance (spent); b. That a temporary injunction issue restraining the Defendants, their agents, employees, servants and/or anyone acting under their instructions houses, from buildings, demolishing the developments homes, and all structures, or engaging in any dealings with the suit properties known as Mombasa/Block XII/143 and Mombasa/Block XII/69, pending RULING: ELCLC/E059/2026 Page 4 of 32

page 4 of 32

the hearing and determination of the Application (spent); c. That a temporary injunction issue in the same terms pending the hearing and determination of the entire suit; and d. That costs be in the cause. The Notice of Motion dated 3rd July 2026 8. The application was based on the grounds set out on the face of the application and the contents of the supporting affidavit sworn by Katana Kalume Kipuru on 3rd July 2026. The substantive prayers in the Plaintiff’s contempt Motion were: a. That summons Hussein issue Mohamed, Committee Member to the Hon. Mohamed County Executive for Lands, Urban Planning, Housing and Serikali Mtaani, and Hon. Abdulswamad Governor of Shariff Mombasa, or Nassir, any the person subsequently holding either office, to appear personally and show cause why he should not be found guilty of contempt and punished for deliberately failing to obey the orders made on 2nd June 2026 and subsequently extended (spent); b. In the alternative, that the said officers be committed RULING: ELCLC/E059/2026 to civil jail and/or ordered Page 5 of 32

page 5 of 32

personally to pay a fine from their salaries or earnings for failure to comply with the Court’s orders; c. That the said officers be declared unfit to hold public office, whether elected or appointed, or to exercise public authority, for contempt of the Court’s express orders; and d. That costs be borne personally by the said officers and be paid forthwith or drawn directly from their salaries or earnings. The Notice of Motion dated 9th July 2026 9. The application was based on the grounds set out on the face of the application and the contents of the supporting affidavit sworn by Paul Manyala on 9th July 2026. The 3rd Defendant sought the following orders: a. That the Application be certified as urgent and service be dispensed with in the first instance (spent); b. That, pending the hearing and determination of the Application, there be a stay of the summons issued on 6th July 2026 requiring the personal attendance Defendants on 21st of the 1st and 2nd July 2026 to show cause why they should not be cited and punished for contempt(spent); RULING: ELCLC/E059/2026 Page 6 of 32

page 6 of 32

c. That the Court review, vary and/or set aside Order No. 2 contained in the orders issued on 6th July 2026 directing that summons issue against the 1st and 2nd Defendants; d. That the Court consequently vacate and/or discharge the summons issued pursuant to that order and hold that the enforcement action undertaken on Plot No. Mombasa/Block XII/169 did not fall within the scope of the temporary injunction issued on 2nd June 2026; and e. That costs of the Application be awarded to the 3rd Defendant/Applicant. C. SUMMARY OF THE PARTIES' RESPECTIVE CASES The Plaintiff's Case 10. The Plaintiff maintains that he is the registered proprietor of Plot Nos. Mombasa/Block XII/69 and Mombasa/Block XII/143, holding titles issued in 1979 and 1981 respectively, and that he has occupied the parcels continuously since those dates. His supporting affidavit of 25th May 2026 exhibited two enforcement notices, his two title documents and photographs of earthworks. He contends that the notices threatened immediate destruction of his home, that the Defendants had commenced earthworks in furtherance of that threat, RULING: ELCLC/E059/2026 Page 7 of 32

page 7 of 32

and that unless restrained he would suffer irreparable loss incapable of compensation in damages. 11. The Plaintiff’s further affidavit sworn on 23rd June 2026 and replying affidavit sworn on 20th July 2026 challenge the evidential value of the Defendants’ technical material. He contends that Gilbert Nderitu and Paul Manyala did not exhibit proof of their professional qualifications or employment; that the technical survey drawings attributed to Gilbert Nderitu, Kelvin Ndavi and T. Kutto were unsigned, undated or unsupported by practising licences; that no formal surveyor’s report was produced; and that the Defendants did not exhibit a title demonstrating that Plot No. Mombasa/Block XII/58, commonly called Ziwani Ground, is public land. He states that both enforcement notices bore his name, that he owns Plot Nos. XII/69 and XII/143, and that any confusion between Plot XII/69 and Plot XII/169 on the enforcement notices is attributable to the Defendants themselves as the same notices were handwritten. 12. On the question of contempt, the Plaintiff asserts that the Defendants had actual knowledge of the injunction because they twice sought and twice abandoned applications to vacate or vary it, yet proceeded on 2nd July 2026 to demolish the building in open defiance of the subsisting order. He relies on the court orders, photographs of the demolition, the summons and the notices of withdrawal. He RULING: ELCLC/E059/2026 Page 8 of 32

page 8 of 32

maintains that the named public officers ought to be held personally accountable. The Defendants' Case 13. The Defendants, through the replying affidavit of Gilbert Nderitu, the County Surveyor, sworn on 15th June 2026, contend that the enforcement notices of 22nd May 2026 were lawfully issued under the Physical and Land Use Planning Act following survey and inspection, and that the Plaintiff's developments were erected without requisite planning approval. They rely on previous enforcement notices, topo-cadastral drawings for Plot No. Mombasa/Block XII/58, a topographic survey, a cadastral plan of Mombasa Block XII and related location material. 14. The Defendants maintain that the cadastral and survey records identify Plot Nos. XII/168, XII/169 and XII/170 as distinct parcels adjoining the Ziwani Ground public project, and establish that portions of the Plaintiff’s developments extend into Plots XII/168 and XII/169 and onto a road reserve. They say the Plaintiff exhibited title to Plot XII/69 but no title, lease, survey plan or other proprietary instrument relating to Plot XII/169. They therefore accuse him of conflating the two parcels and RULING: ELCLC/E059/2026 Page 9 of 32

page 9 of 32

invoke the public interest in protection of public land and enforcement of planning law. 15. In the replying affidavit sworn on 10th July 2026, Paul Manyala, the County Director of Physical Planning, states that the enforcement and demolition occurred exclusively on Plot No. XII/169 after expiry of the statutory compliance period; that Plot Nos. XII/69 and XII/143 were not interfered with; and that the Plaintiff’s photographs prove demolition but do not establish its cadastral location. He deposes that the earlier applications were withdrawn after the Defendants reconsidered the scope of the injunction, and not as an admission of breach. The Defendants further deny that either the 1st or 2nd Defendant personally authorised, directed, supervised or participated in the enforcement exercise. D. DIRECTIONS GIVEN 16. When the three applications came up for directions on diverse dates, the Court ordered that they be canvassed by way of written submissions and granted timelines for filing and exchange. The record shows that the Plaintiff filed the Motion dated 25th May 2026 and submissions dated 23rd June 2026; the Motion dated 3rd July 2026 and submissions dated 23rd August 2026; and a replying affidavit sworn on 20th July 2026 in opposition to the Motion dated 9th July 2026. The Plaintiff indicated that he would rely on that replying affidavit and would not file separate submissions on the Motion dated 9th July 2026. RULING: ELCLC/E059/2026 Page 10 of 32

page 10 of 32

17. The Defendants filed replying affidavits to the Motions dated 25th May and 3rd submissions dated 1st July 2026, consolidated September 2026 and a case summary. The parties appeared in open court on 16th September 2026 to highlight their submissions. The Court has considered the three applications, the supporting, replying and further affidavits, the annexures, the Plaintiff’s consolidated bundle and summary, the enforcement notices, titles, photographs, survey drawings, cadastral plan, court orders, summons, notices of withdrawal, case summary, written submissions and oral highlights properly on record. E. ISSUES FOR DETERMINATION 18. Having considered the entire record consolidating the three Applications, I opine that the following issues fall for determination: a. Whether the Plaintiff has made out a case for the grant of a temporary injunction pending the hearing and determination of the suit; b. Whether Hon. Mohamed Hussein Mohamed and Hon. Abdulswamad Shariff Nassir ought to be RULING: ELCLC/E059/2026 Page 11 of 32

page 11 of 32

found in contempt of the orders issued on 2 nd June 2026; c. Whether the order directing summons to issue and the summons issued pursuant to it ought to be reviewed, set aside or discharged; and d. What orders ought to follow, including as to costs and further conduct of the suit. F. ANALYSIS AND DETERMINATION 19. Two very different judicial powers are summoned in this single Ruling: the equitable power to preserve a status quo pending trial, and the penal power to punish disobedience of the Court’s own command. The first looks forward, asking only whether a right deserves temporary shelter; the second looks backward, asking whether a command, clearly given and clearly known, was deliberately defied. Equity holds the ring until the contest can be fairly tried. Contempt vindicates the rule of law, but because it may take away liberty, it must never rest on inference where proof is required. I take each power in turn. Issue 1: Whether the Plaintiff has made out a case for a temporary injunction. 20. The threshold for interlocutory injunctive relief remains that settled in Giella v Cassman Brown & Co Ltd [1973] EA 358 and restated in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR). RULING: ELCLC/E059/2026 The Court must Page 12 of 32

page 12 of 32

examine three requirements, each doing its own work and each calling for a distinct finding: a. whether the applicant has established a prima facie case with a probability of success; b. whether, unless the injunction is granted, the applicant stands to suffer irreparable injury that cannot adequately be compensated by an award of damages; and c. where the Court remains in doubt, where the balance of convenience lies. 21. The three requirements are sequential. The Court is not invited to conduct a miniature trial, to settle disputed boundaries on affidavit evidence, or to declare the ultimate winner before witnesses are heard. Yet it must do more than repeat a formula. It must bring each limb to the facts and say why it is, or is not, satisfied. 22. The first requirement: a prima facie case. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), the Court of Appeal described a prima facie case as one in which the material presented discloses a right apparently infringed by the opposite party so as to call for an answer. It is more than an arguable case, but it is not proof of the claim on a balance of probabilities. At this stage the Court asks whether there is RULING: ELCLC/E059/2026 Page 13 of 32

page 13 of 32

a serious right deserving protection, not whether that right has finally prevailed. 23. The Plaintiff has produced certificates of title to Plot Nos. Mombasa/Block XII/69 and Mombasa/Block XII/143, issued on 19th January 1979 and 7th July 1981 respectively. He says he has occupied and developed the parcels for decades. The enforcement notices of 22nd May 2026 bear his name, and the Defendants accept that their officers identify the person associated with a development before enforcement is undertaken, and that they demolished the plaintiff’s property. The Defendants dispute the cadastral location of the developments and rely on a topographic survey, topo-cadastral drawings and a cadastral plan. The Plaintiff, in turn, challenges the qualifications disclosed by the makers, the absence of a formal survey report, the unsigned or undated character of some drawings, and the absence of a title establishing the asserted public character of Plot No. Mombasa/Block XII/58. Those conflicts are substantial, but they are conflicts for trial. They do not erase the two registered titles or the immediate threat disclosed by the notices. 24. I therefore find that the Plaintiff has crossed the first threshold in respect of Plot Nos. XII/69 and XII/143, and the demolition that has already taken place. That finding is deliberately modest. It neither validates every structure nor decides the alleged encroachment upon Plot Nos. XII/168, XII/169 or XII/170. It simply recognises that a RULING: ELCLC/E059/2026 Page 14 of 32

page 14 of 32

registered proprietor who faces demolition of longstanding developments has shown an apparent right calling for explanation and temporary protection. 25. The second hurdle is the demonstration that the plaintiff stands to suffer irreparable injury that cannot be adequately compensated by an award of damages. In Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), the Court of Appeal explained that the injury must be actual, substantial and demonstrable, and one that cannot adequately be remedied by damages. Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) similarly recognises that irreparable harm is injury for which no other adequate [monetary] remedy is open to the applicant. The question is not whether money can be counted after the event. Almost every building has a market value. The question is whether an award of money would be a just and adequate substitute for preservation pending trial. 26. Here the threatened and actual act is demolition. Once a home or permanent building is brought down, the subject matter is not merely diminished; it is changed. The Plaintiff is an elderly man who says the developments have sheltered him and his family through decades of occupation. Their destruction before trial would confront the Court with a completed act and the Plaintiff with a loss not adequately answered by a later valuation. The demolition would cause the plaintiff to lose his home and RULING: ELCLC/E059/2026 Page 15 of 32

page 15 of 32

livelihood, which he has established in the suit premises for decades. This damage that has begun cannot be adequately compensated in damages recoverable in the action if the matters in dispute were resolved in his favour at the trial. The photographs and the events of 2nd July 2026 show that the apprehension was neither fanciful nor remote. I find the second requirement satisfied. 27. Last but not least, is the third requirement for the court to exercise its discretion, and weigh where the balance of convenience lies. This limb arises if doubt remains after the first two. It asks which course carries the lower risk of injustice. If the injunction is refused and the Plaintiff ultimately succeeds, the land may already have been cleared and the developments destroyed. If the injunction is granted and the Defendants ultimately succeed, their enforcement mandate will have been delayed, but not extinguished. Delay can be cured by an expedited trial; demolition cannot be undone by judicial prose. As is, the balance of convenience favours securing the plaintiff’s rights as a registered proprietor of the suit premises until the evidence is tested and case determined. 28. That conclusion does not blind the Court to the Defendants’ statutory planning mandate, the public interest in protecting road reserves and public land, or the allegation that development permission was never obtained. Nor have I overlooked the contention that the Plaintiff did not pursue the appellate process referred to in the enforcement RULING: ELCLC/E059/2026 Page 16 of 32

page 16 of 32

notices. Public power is important; so is the discipline of legality. Neither is served by deciding a contested cadastral question on incomplete affidavit evidence. The jurisdictional and exhaustion questions were not distinctly framed and fully argued for final determination in these applications. They remain open for proper determination should they arise in a procedurally appropriate manner in the trial. 29. I must nevertheless define the reach of the protection with care. The Plaintiff’s Motion expressly names Plot Nos. XII/69 and XII/143, and his titles relate to those parcels. He produced no title, lease or survey instrument for Plot No. XII/169. The Court therefore does not declare Plot No. XII/169 to be his land, nor does it restrain lawful enforcement merely because that parcel is nearby. At the same time, the Defendants say their procedures identify the person occupying or associated with a property before demolition. In order to preserve the substratum of the subject matter and prevent the same uncertainty from producing another irreversible act, the injunction will protect the two suit parcels and any property which the Defendants’ own pre-enforcement identification establishes to be the Plaintiff’s in the vicinity, and which lies next to, is annexed to, or abuts the suit parcels. This is a holding order, not a declaration of title. It endures until trial or until varied by this Court upon clearer cadastral material. RULING: ELCLC/E059/2026 Page 17 of 32

page 17 of 32

30. The Notice of Motion dated 25th May 2026 therefore succeeds. Each of the three requirements has been considered separately and satisfied: there is a prima facie proprietary claim to Plot Nos. XII/69 and XII/143; demolition presents a real risk of irreparable injury; and the balance of convenience lies in preservation rather than irreversible enforcement pending trial. Issue 2: Whether the named officers ought to be found in contempt. 31. The jurisdiction to punish contempt is not gathered from a single provision. It stands upon several converging legal foundations, each reflecting the same elementary truth: a court order is not a suggestion and public office is not a licence to choose which orders deserve obedience. 32. First, section 5 of the Judicature Act confers upon the High Court and the Court of Appeal the power to punish contempt possessed for the time being by the High Court of Justice in England, and extends that power to upholding the authority and dignity of subordinate courts. Following the invalidation of the Contempt of Court Act in Kenya Human Rights Commission v Attorney General; Law Society of Kenya (Interested Party) [2018] KEHC 9656 (KLR), section 5 again forms part of the general statutory foundation of contempt jurisdiction. The Environment and Land Court, as a superior court of record of equal status to the High Court within its constitutional and statutory sphere, also possesses the RULING: ELCLC/E059/2026 Page 18 of 32

page 18 of 32

inherent authority necessary to secure obedience to its orders. 33. Second, Section 29 of the Environment and Land Court Act speaks directly to orders of this Court. It provides that a person who refuses, fails or neglects to obey an order or direction of the Court given under the Act commits an offence and, upon conviction, is liable to a fine not exceeding twenty million shillings, imprisonment for a term not exceeding two years, or both. The severity of those possible sanctions is itself a reminder that the process must be exact and the proof exacting. 34. Third, Section 63(c) of the Civil Procedure Act empowers the Court, where so prescribed, to grant a temporary injunction and, in case of disobedience, to commit the person guilty thereof to prison and order attachment and sale of that person’s property. Order 40 rule 3 of the Civil Procedure Rules supplies the specific procedure and consequence where an injunction is breached: the Court may attach the property of the person guilty of disobedience and may order detention in prison for a term not exceeding six months. The present complaint is, at its core, an allegation that an injunction granted under Order 40 was disobeyed. These provisions therefore give the Court a direct statutory footing to consider it. 35. Jurisdiction, however, is only the beginning. The power is coercive and penal. It exists to protect the administration of justice, not to enlarge an order after the event, settle a RULING: ELCLC/E059/2026 Page 19 of 32

page 19 of 32

disputed boundary by punishment, or make an example of an office-holder without proof of personal fault. The Supreme Court in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR)affirmed both the Court’s power to enforce its orders and the demand for a fair procedure and a standard of proof higher than the ordinary civil standard. The Court of Appeal put the point memorably in Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR): “A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily... It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt.” 36. The same caution is reflected in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR). It follows that the Plaintiff need not prove contempt beyond reasonable doubt in the strict criminal sense, but must prove it to a standard distinctly higher than a balance of probabilities. Suspicion, however grave, is not enough. Indignation, however understandable, is not evidence. I understand this standard as an ‘intermediate standard of proof’, not beyond reasonable doubt, but well above a balance of probability, that I deem must be established for contempt to hold. 37. The four elements of dispensing this ‘intermediate standard of proof’ in civil contempt were conveniently gathered in RULING: ELCLC/E059/2026 Page 20 of 32

page 20 of 32

Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR). It was held that the applicant must establish; a. that the terms of the order, injunction or undertaking were clear and unambiguous and binding on the alleged contemnor; b. that the alleged contemnor had knowledge of, or proper notice of, the terms of the order; c. that the alleged contemnor acted in breach of the terms of the order; and d. that the disobedience was willful and deliberate. 38. These elements are cumulative. A contempt charge is a chain; if an essential link is missing, punishment cannot follow. I address each separately. 39. The first element is the requirement for a clear, unambiguous and binding order. The order made on 2nd June 2026 granted interim protection in the terms of the prayers relating to Plot Nos. Mombasa/Block XII/69 and Mombasa/Block XII/143. As a matter of language, the command was clear: the Defendants were not to demolish or interfere with developments on those two parcels while the order remained in force. It read, “The court be pleased to issue a temporary injunction restraining the defendants, their agents, employees, servants and/or anyone RULING: ELCLC/E059/2026 Page 21 of 32

page 21 of 32

acting under their instructions from demolishing the homes, houses, buildings, developments and all the structures or engaging in any dealings with suit property known as Mombasa/Block XII/143 and Mombasa/Block XII/169 pending the hearing and determination of this application.” The order was extended and had not been discharged by 2nd July 2026. Its binding character is not diminished by the fact that the Defendants considered it mistaken or inconvenient; an order must be obeyed until set aside. I therefore find the first element established. The later dispute concerns not what the order said, but where, on the ground, the demolition occurred. 40. The second element requires that the alleged contemnor had [personal] knowledge or proper notice of the orders. The institutional knowledge of the County Government is beyond serious controversy. The Defendants participated in the proceedings, filed the applications dated 15th and 16th June 2026 seeking to vacate or vary the injunction, and later withdrew them. 41. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order. The plaintiff filed an affidavit of service sworn by Timothy Kiringi Katso on 4th June 2026 where he deposed that on 3rd June 2026 he RULING: ELCLC/E059/2026 Page 22 of 32

page 22 of 32

served the application dated 25th May 2026 alongside the orders issued on 2nd June 2026 onto the defendants though their email info@mombasa.go.ke . 42. On 6th July 2026, the court inter alia issued summons to Hon. Mohamed Hussein Mohamed, CECM Lands, Urban Planning, Housing & Serikali Mtaani, and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa, to appear before court in person on 21st July, 2026 to show cause why they should not be cited for contempt of the Orders of this Court. The plaintiff filed an affidavit of service sworn by Timothy Kiringi Katso on 7th July 2026 where he deposed that on the same day he served the application dated 3rd July, 2026 alongside the orders issued on 6th July, 2026 onto the defendants through their email countyattorney01@gmail.com . 43. Both affidavits of service do not contain averments to demonstrate that Hon. Mohamed Hussein Mohamed, CECM Lands, Urban Planning, Housing & Serikali Mtaani, and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa, were personally served with either the orders of 2nd June 2026 or the summons dated 6th July 2026. It is therefore clear that the Hon. Mohamed Hussein Mohamed, CECM Lands, Urban Planning, Housing & Serikali Mtaani, and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa, were never personally served with the court orders they are deemed to have disobeyed, therefore, they were never aware of their terms. For them to be held in RULING: ELCLC/E059/2026 Page 23 of 32

page 23 of 32

contempt, the plaintiffs must demonstrate that there was willful disobedience of the order. 44. Actual knowledge can, in an appropriate case, displace the need for personal service. But the Motion seeks penal orders against two named natural persons: The County Executive Committee Member and the Governor. Contempt is not a net cast over an office. It is a charge proved against a person. The affidavits of service show transmission through institutional email addresses, but the material does not establish when and how each named officer personally received or became aware of the precise terms of the injunction. Institutional knowledge is proved; the personal knowledge necessary for punishment of the two named officers is not proved to the heightened standard. The second element therefore fails as against them personally. 45. The third element is breach of the order. It is common ground that a demolition took place on 2nd July 2026. The photographs show destruction, and the Defendants do not deny undertaking enforcement. The contested fact is cadastral location. The Plaintiff says the demolished building stood on his protected property and points to notices addressed to him, his longstanding occupation and the Defendants’ own identification process. The Defendants say they acted only on Plot No. XII/169 and rely on survey drawings and cadastral material. The Plaintiff attacks that material as unsigned, undated, unsupported by a formal report and not shown to have been prepared by duly RULING: ELCLC/E059/2026 Page 24 of 32

page 24 of 32

qualified persons. Those criticisms may weaken the Defendants’ case at trial; they do not, by themselves, prove that the demolition took place on Plot XII/69 or XII/143. Conversely, photographs of rubble establish the act but not its coordinates. No independent survey, Registry Index Map evidence tied to beacons on the ground, georeferenced plan or expert affidavit conclusively locates the demolished structure within either protected parcel. 46. The Court is thus faced with two competing locations and no sufficiently tested bridge between the paper records and the ground. A contempt court cannot resolve that uncertainty by choosing the more troubling narrative. The Plaintiff bears the burden. On the present affidavit record, I cannot safely find, to the intermediate standard, lower than beyond reasonable doubt but higher than a balance of probabilities, that the demolition occurred on Plot XII/69 or XII/143. The third element has not been established. 47. The fourth element is the willful and deliberate disobedience. Deliberateness is not proved merely because the act was intentional in the ordinary sense. The Plaintiff must connect the named contemnors to a conscious decision to do what the order forbade. No evidence shows that either officer knowingly personally authorised, directed, supervised or participated in the demolition. The Defendants describe the operation as a technical enforcement exercise undertaken by departmental officers. Their two earlier applications to vacate or vary the RULING: ELCLC/E059/2026 Page 25 of 32

page 25 of 32

injunction show institutional knowledge and may invite a close judicial eye; but withdrawal of an application is not, without more, an admission that the later act breached the order. 48. The plaintiff has not demonstrated the willfulness of the disobedience, since there is Mohamed Hussein Mohamed, Planning, Housing & no Serikali evidence CECM that Lands, Mtaani, Hon. Urban and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa, were personally aware of the terms of the order. That is, he must know what the order required him to do or not to do but willfully and deliberately disobeyed it. Without evidence of personal service of the orders, the court cannot find the Hon. Mohamed Hussein Mohamed, CECM Lands, Urban Planning, Housing & Serikali Mtaani, and Hon. Abdulswamad Shariff Nassir, the Governor of Mombasa, in contempt of court orders issued on 2nd June, 2026 or the summons issued on 6th July, 2026. 49. Given that contempt of court orders seek the imprisonment of a party and denial of the liberty of a person, the plaintiff cannot wish away the duty to prove beyond a shadow of doubt the requirements of personal service expected of them. The criminality of punishing a party for disobeying a court order places a greater burden on the plaintiff to prove to the court that despite the party being fully aware RULING: ELCLC/E059/2026 Page 26 of 32

page 26 of 32

of the orders, he or she chose to disobey and for that reason should be punished. 50. Where the location of the act is unproved and personal knowledge and participation are not established, willful defiance cannot safely be inferred. The fourth element also fails. 51. The Court’s conclusion is therefore not that the demolition was proper, or that public authorities may treat court orders lightly. It is narrower. The Plaintiff has established a known injunction and an admitted demolition, but he has not established, against the two named officers and to the required standard, personal knowledge, breach within the protected parcels, and deliberate personal disobedience. The Notice of Motion dated accordingly fail. The 3rd authority July of the 2026 Court is must not strengthened by punishment unsupported by proof; it is strengthened when the Court applies to itself the same discipline it demands of others. Issue 3: Whether the order directing summons to issue and the summons issued pursuant to it ought to stand. 52. The order of 6th July 2026 directing summons to issue was procedural. It required attendance to show cause, but did not determine guilt. It was made at the threshold, before the replying affidavits, cadastral material and fuller RULING: ELCLC/E059/2026 Page 27 of 32

page 27 of 32

arguments were placed before the Court. The more complete record now reveals a genuine dispute as to the location of the demolition and no sufficient evidential link between the two named officers and deliberate noncompliance. Once the substantive contempt Motion fails, compulsory personal attendance serves no remaining forensic purpose. 53. Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules permit review for discovery of important matter not within the applicant’s knowledge despite due diligence, mistake or error apparent on the face of the record, or any other sufficient reason. The Court also retains inherent power to prevent its process from becoming oppressive or purposeless. The fuller material and the determination now reached constitute sufficient reason to recall the procedural order. Prayer 3 of the Motion dated 9th July 2026 and the first limb of prayer 4 are therefore merited. The wider request for a substantive declaration that enforcement on Plot No. XII/169 fell outside the injunction is declined: that would decide, through an interlocutory application, the very cadastral dispute reserved for trial. 54. The result is mixed. The Plaintiff succeeds on preservation but fails on contempt. The 3rd Defendant succeeds in discharging the summons but does not obtain the wider declaration sought over Plot No. XII/169. In those circumstances, and because all three applications arise RULING: ELCLC/E059/2026 Page 28 of 32

page 28 of 32

from the same unresolved factual controversy, the fair order is that their costs abide the outcome of the cause. G. CONCLUSION AND DISPOSAL ORDERS 55. A court that protects a home without proof of right does justice to no one, similarly, a court that punishes a public officer without proof of breach and personal culpability does justice to no one either. Balancing both concerns, I find that the Plaintiff’s claim to land and property on Plot Nos. XII/69 and XII/143 deserves interim protection pending trial, while the contempt sought against the named officers, and the summons issued in pursuit of it, cannot stand on the material before me. This Ruling preserves what has been sufficiently demonstrated, refuses penal relief that has not been proved to the requisite standard, and leaves the disputed cadastral and substantive rights to be determined upon tested evidence at trial. 56. For the reasons set out above, I make the following orders: a. The Notice of Motion dated 25 th allowed in injunction Defendants, terms is May 2026 is of prayer 3. hereby issued restraining their agents, A temporary employees, the servants and/or anyone acting under their instructions from demolishing the homes, houses, buildings, developments or structures, or engaging in any RULING: ELCLC/E059/2026 Page 29 of 32

page 29 of 32

dealings with the Mombasa/Block XII/143, and suit XII/69 the properties and plaintiff’s known as Mombasa/Block property next to, annexed to or abutting the suit properties, pending the hearing and determination of the suit. b. The Plaintiff’s Notice of Motion dated 3 rd July 2026 is hereby dismissed. c. The 3rd Defendant’s Notice of Motion dated 9th July 2026 is partially allowed in terms of prayer 3 and the first limb of prayer 4. The order issued on 6 th July 2026 directing summons to issue against the 1st and 2nd Defendants is reviewed, vacated and set aside, and the summons issued pursuant thereto are recalled and discharged. d. The second limb of prayer 4 of the Notice of Motion dated 9th July 2026, seeking a substantive holding concerning enforcement Mombasa/Block XII/169, on is Plot No. declined for determination at this interlocutory stage. e. For the avoidance of doubt, this Ruling determines only the three interlocutory applications and does not pronounce upon the substantive rights of the parties over Plot No. Mombasa/Block XII/169 or the merits of the main suit. RULING: ELCLC/E059/2026 Page 30 of 32

page 30 of 32

f. The costs of the Notices of Motion dated 25 th May 2026, 3rd July 2026 and 9th July 2026 shall abide the outcome of the cause. g. The parties shall complete any outstanding pretrial steps under Order 11 of the Civil Procedure Rules within thirty (30) days of delivery of this Ruling, this shall include filing and serving their trial bundles that include their case summaries, pleadings, documentary statements and evidence and any other due documents, and the matter is scheduled for mention on 16th November, 2026 to confirm a possible out of court settlement and give further directions. Orders accordingly. Dated, signed and delivered virtually via Microsoft Teams at Mombasa this 24th day of September 2026. ........................................................ B. A. AKELLO, OGW JUDGE In the presence of: Gillian – Court Assistant Mr. Nyange for the Plaintiff RULING: ELCLC/E059/2026 Page 31 of 32

page 31 of 32

Mr. Mohammed for the Defendants RULING: ELCLC/E059/2026 Page 32 of 32

page 32 of 32