Vitalis Ojwang Owino & Another v Nickson Odhiambo Oyiera & Another; Nairobi City County & Another (Interested Parties)

Defendants/Respondents to appear before this Court to show cause why they should not be cited for contempt of court for disobeying the orders issued on 29 th January 2026 by Hon. Lady Justice Judy Omange. 3. THAT this Honourable Court be pleased to issue an order summoning the Defendants/Respondents to show cause why they should not be cited for contempt of court for disobeying the orders issued on 29th January 2026. 4. THAT this Honourable Court be pleased to declare that the Defendants/Respondents are in contempt of the court orders issued on 29th January 2026. 5. THAT this Honourable Court be pleased to order the Defendants/Respondents to immediately comply with the orders of this Court by restoring the Plaintiffs into vacant possession of the suit premises. 6. THAT the Defendants/Respondents be punished for contempt of court for willfully disobeying the court order issued on 29th January 2026. 7. THAT in default of compliance, the Defendants/Respondents be committed to civil jail for a period not exceeding six (6) months or be fined as this Honourable Court may deem fit. 8. THAT the Officer Commanding Station (OCS) of the Makongeni Police Station be served with the Court order and be directed to ensure compliance with the orders of this Honourable Court. 9. THAT the costs of this Application be provided for. RULING ELC E103 OF 2025 2 of 24

page 2 of 24

2. The Application is premised on the grounds that on 29 th January 2026, this Court issued orders compelling the Respondents to restore the Applicant into vacant possession of the suit premises. The Court also issued a prohibitory injunction restraining the Respondents from interfering with the Applicants quiet possession of the suit premises. The Applicants state that the Court directed the Respondents to comply with the orders within thirty (30) days from the date of the order. 3. It is the Applicants’ case that the said orders were duly served upon the Respondents, who were consequently aware of their terms. They contend that despite such knowledge, the Respondents deliberately refused and/or neglected to comply with the orders. Their conduct is therefore alleged to constitute willful disobedience and contempt of Court. 4. The Applicants further contend that the continued disregard of the Court’s orders undermines the dignity and authority of the Court and that it is in the interests of justice that the Respondents be found in contempt, punished accordingly and compelled to comply with the orders of 29th January 2026. 5. In the Supporting Affidavit, the Applicants reiterate the circumstances surrounding the orders of 29th January 2026 and their alleged noncompliance by the Respondents. The Applicants rely on the Ruling, the resultant Order, and letters served upon the Respondents as annexures in RULING ELC E103 OF 2025 3 of 24

page 3 of 24

support of their contention that the orders were issued, communicated to and brought to the attention of the Respondents, but were nevertheless not complied with. Replying Affidavit 6. The Application is opposed by the 2nd Respondent/Defendant, Davis Otieno Owino, who swore a Replying Affidavit on 2nd June 2026. He denies the allegation that he willfully and deliberately refused or neglected to comply with the orders issued by the Court on 29th January 2026. He contends that the allegation of blatant contempt is premature, unfounded and does not reflect the circumstances obtaining in relation to the suit property. The Respondent acknowledges that compliance with a court order is a serious legal obligation but denies that the Applicants were denied vacant possession through any wrongful act or omission on his part. 7. He further states that the status of the suit property is complex and involves competing claims of ownership which remain pending determination before the Court. He therefore denies having acted in a manner that undermines the authority of the Court or caused the Applicants hardship or loss. 8. The 2nd Respondent asserts that he has taken all necessary steps within his ability to comply with the Court order. RULING ELC E103 OF 2025 4 of 24

page 4 of 24

9. Finally, the 2nd Respondent characterizes the Application as an abuse of the court process, alleging that it is motivated by ulterior purposes aimed at harassing the Respondents. He contends that the Applicants have not approached the Court with clean hands and are therefore not deserving of the contempt orders sought. The Applicants’ Submissions 10.The Applicants submit that the Court issued clear valid and binding orders on 29th January 2026. The orders were to be complied with within thirty (30) days. The Applicants contend that despite service of the orders and a letter outlining the Respondents’ obligations, the Respondents failed to comply and continued to deny them vacant possession. They submit that such conduct jeopardises their rights and undermines the authority of the Court. 11.The Applicants identify four issues for determination on whether valid and binding orders existed; the Applicants submit that the orders of 29th January 2026 were lawful, valid, clear, unambiguous and capable of compliance. They rely on Republic v County Secretary, Nairobi City County & Another; Litswa & Another (Ex parte Applicants) (Suing as the Legal Representatives of the Estate of Hermaton Litswa), Judicial Review RULING ELC E103 OF 2025 5 of 24

page 5 of 24

Miscellaneous Application No. 292 of 2019 [2025] KEHC 9339 (KLR), for the principle that court orders are binding upon those to whom they are directed and must be obeyed unless and until lawfully set aside. 12.On whether the Respondent conduct meets the threshhold for contempt, the Applicants rely on Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, submitting that contempt proceedings are quasi-criminal in nature and consequently require a standard of proof higher than the ordinary balance of probabilities, although not beyond reasonable doubt. They further rely on Koilel & 2 Others v Koilel & Another (Civil Appeal E002 of 2021) [2022] KEHC 10288, for the three elements which they contend must be established. 13.The Applicants submit that the requirements were met in the present case. They contend that the order was clear and specific and that the Respondents deliberately failed to comply, continued to occupy the suit property, denied the Applicants access and continued to benefit from the alleged unlawful conduct. 14.On the issue of whether the Respondents had knowledge of the orders, the Applicants rely on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR). They submit that notice of an order may be established by the person’s presence when the order is made or through RULING ELC E103 OF 2025 6 of 24

page 6 of 24

any other means by which knowledge of its terms is demonstrated, including communication through counsel. They further rely on the principle that once notice is established, the evidential burden in relation to wilfulness and mala fides in disobedience falls upon the alleged contemnor. The Applicants contend that the Respondents were actively involved in the proceedings through their advocates and that the orders were expressly brought to their attention by a letter dated 27th February 2026. They consequently submit that the Respondents had actual or constructive knowledge of the orders. 15.The Applicants further rely on Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR for the proposition that a person against whom an order is made by a competent court has a plain and unqualified obligation to obey it unless and until it is discharged. 16.The Applicants also rely on Order 40 Rule 3(1) of the Civil Procedure Rules, Sections 3A and 63(c) of the Civil Procedure Act and Section 5(1) of the Judicature Act as the statutory foundation for the Court’s jurisdiction and power to address disobedience of injunction orders. In particular, they submit that Order 40 Rule 3(1) empowers the Court, in cases of disobedience or breach of an injunction, to order attachment of the property of the person guilty of the breach and detention in prison for a term not exceeding six months. RULING ELC E103 OF 2025 7 of 24

page 7 of 24

17.On the reliefs sought, the Applicants submit that the alleged continued defiance of the orders undermines the authority of the Court and warrants appropriate punitive measures. The 1st and 2nd Respondents’ Submissions 18.The 1st and 2nd Respondents filed written submissions. They contend that the Applicants’ case is founded on the allegation that they willfully refused or neglected to comply with the orders issued on 29th January 2026, is unsupported by sufficient evidence. Their position is that they fully complied with the orders by vacating the suit premises, which are now vacant and available for the Applicants to take possession. 19.The Respondents submitted on whether they should be found in contempt and acknowledged that the orders of 29th January 2026 required them to restore the Applicants into vacant possession within thirty days and to refrain from interfering with the Applicants’ quiet possession and occupation. They submit that they complied by vacating the premises, which they state are empty, unoccupied and unobstructed. Their position is that an order for vacant possession is discharged once the party in occupation vacates and ceases to interfere with the other party’s re-entry. They argue RULING ELC E103 OF 2025 8 of 24

page 8 of 24

that they cannot be compelled to physically place the Applicants into the premises where the premises have already been vacated. 20.The Respondents further submit that the suit premises constitute county housing stock, with Nairobi City County as landlord, and occupation is on a tenancy basis. They contend that their obligation under the order was to vacate and cease interference, which they have fulfilled. They therefore cannot be held responsible for any failure or delay by the Applicants in taking up possession of premises which are already vacant. 21.Reliance is placed on Kinyua v Kamenya (Environment & Land Case No. 186 of 2016) [2024] KEELC 6576 (KLR), where the Court held, in substance, that contempt proceedings should be used as a last resort and require clear proof of an unambiguous order, knowledge or service, and failure to comply. The Respondents rely on the decision for the further proposition that where a decree requires a further step by the successful party to obtain actual possession, the appropriate remedy is execution under Order 22 of the Civil Procedure Rules, rather than contempt proceedings. They therefore submit that if the Applicants remain out of possession despite the premises having been vacated, their remedy lies in seeking execution assistance rather than pursuing contempt proceedings. RULING ELC E103 OF 2025 9 of 24

page 9 of 24

22.The Respondents also rely on Section 107(1) of the Evidence Act, submitting that the party who asserts a fact bears the burden of proving it. They cite Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 for the distinction between the legal burden and evidential burden of proof. They contend that the Applicants have merely made bare allegations of non-compliance without producing photographs, an inventory, inspection report, evidence of refused access or other cogent evidence showing that the Respondents remain in occupation or obstructed the Applicants’ re-entry. 23.On the standard of proof, the Respondents rely on Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, submitting that contempt proceedings are quasi-criminal and therefore require a standard of proof higher than the balance of probabilities, though below beyond reasonable doubt. They further cite Re Bramblevale Ltd [1969] 3 All ER 1062 for the proposition that contempt must be satisfactorily proved and that where the evidence is equally consistent with innocence and guilt, the party bearing the burden fails. The Respondents submit that the evidence before Court is at least equally, if not more, consistent with their compliance than with continuing disobedience. RULING ELC E103 OF 2025 10 of 24

page 10 of 24

24.The Respondents consequently maintain that they have fully discharged their obligations under the order of 29th January 2026 and that there is no credible or cogent evidence of wilful disobedience. They therefore submit that the contempt application fails for want of proof. 25.On costs, the Respondents rely on Section 27 of the Civil Procedure Act and the general principle that costs follow the event, subject to the Court’s discretion. They cite Ngayu v Credit Reference Bureau Africa Ltd (Civil Case No. 17 of 2014) [2016] KEHC 7064 (KLR), which relied on Republic v Rosemary Wairimu Munene, Ex parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd, for the principle that costs are discretionary and ordinarily follow the event, serving to compensate the successful party rather than punish the unsuccessful party. ANALYSIS AND DETERMINATION 26. The Court has considered the Notice of Motion dated 17th March 2026, the Supporting Affidavit and its annexures, the Replying Affidavit, the rival written submissions and the authorities cited therein. The issue for determination is: i. whether the Applicants have established the alleged contempt of the orders issued on 29th January 2026 RULING ELC E103 OF 2025 11 of 24

page 11 of 24

ii. whether they are entitled to the orders sought. 27. The contempt application arises from the orders made by this Court in its ruling delivered on 29th January 2026. The relevant orders were expressed in the following terms: i. A mandatory injunction is hereby issued compelling the Defendants to restore the Plaintiff into vacant possession of the suit premises forthwith pending the hearing and determination of the suit. ii. A prohibitory injunction is hereby issued restraining the Defendant, his agents or servants from interfering with the Plaintiffs quiet possession and occupation of the suit premises pending the hearing and determination of the suit. iii. The Defendants shall comply with the order within 30 days from the date hereof. iv. Costs shall abide the outcome of the main suit. 33.Section 63(c) of the Civil Procedure Rules recognises that disobedience of injunctions may attract coercive sanctions and provides that in order to prevent the ends of justice from being defeated, the court may: "...grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold." RULING ELC E103 OF 2025 12 of 24

page 12 of 24

34.Order 40 of the Civil Procedure Rules governs the grant of temporary injunctions and interlocutory preservation orders. Order 40 Rule 3 expressly empowers the court to enforce compliance with injunctions by attachment of property and committal where a party is guilty of disobedience or breach of the terms of an injunction. This provision forms one of the principal procedural bases for applications alleging contempt arising from breach of temporary injunctions. 35. Historically, the jurisdiction to punish for contempt in Kenya was principally exercised under section 5 of the Judicature Act, which conferred upon the High Court and the Court of Appeal the same power to punish for contempt as was possessed by the High Court of Justice in England. 36.Parliament enacted the Contempt of Court Act, No. 46 of 2016 with the intention of codifying the law relating to contempt. However, in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR, the High Court declared the Act unconstitutional in its entirety. The consequence of that decision was not to abolish the jurisdiction to punish for contempt, but rather to restore the position that existed before the enactment of the Act. Kenyan courts have since continued to exercise the jurisdiction through the Constitution, the Judicature Act (where applicable), the Civil Procedure Act, the Civil Procedure Rules, and their inherent powers as superior courts of record. RULING ELC E103 OF 2025 13 of 24

page 13 of 24

37.The jurisdiction to punish for contempt is one of the most coercive powers vested in a court of law. It is a jurisdiction that must be exercised with restraint, circumspection and fidelity to constitutional principles. Courts recognise that contempt proceedings may culminate in the deprivation of liberty or property and therefore require careful judicial scrutiny before sanctions are imposed. 38.The Court of Appeal in Mutitika v Baharini Farm Ltd [1985] KLR 227 cautioned that because contempt proceedings are quasi-criminal, the jurisdiction should be exercised only upon strict proof. That caution has been consistently reiterated in later decisions, including Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR and numerous Environment and Land Court decisions. 39.Similarly, the Supreme Court in Republic v Ahmad Abolfathi Mohammed & Another [2018] eKLR underscored that contempt jurisdiction exists to preserve the authority of the courts and the administration of justice, not to vindicate the personal dignity of judicial officers. Consequently, the discretion to punish must always be exercised proportionately and only where the conduct complained of demonstrably threatens the integrity of the judicial process. 40. Courts have also held consistently that findings of contempt must not be founded upon suspicion, assumptions or disputed factual assertions incapable of satisfactory resolution. RULING ELC E103 OF 2025 14 of 24

page 14 of 24

41.The law applicable to civil contempt requires the Applicant to establish the essential elements of contempt. The applicant must prove willful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated by the court in the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR where the court cited with approval the case of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227 which stated that: “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. The standard of proof beyond reasonable 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 in nature. “However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance RULING ELC E103 OF 2025 15 of 24

page 15 of 24

and the greatest anxiety on the partly of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.” The Court went on to quote with approval as follows: “The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus: i) The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it RULING ELC E103 OF 2025 16 of 24

page 16 of 24

incorporates overly broad language; or if external circumstances have obscured its meaning. ii) The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine. iii) The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.” 42.The Court will proceed to examine whether the elements of contempt of court set out above have been established. i) Whether the terms of the order were clear, unambiguous and binding 43.The terms of the order of 29th January 2026 have been set out verbatim elsewhere in this ruling and the Court, having considered the said orders, is satisfied that the terms of the order were sufficiently precise and unambiguous to enable the Defendants to understand what was required of them. The order was therefore capable of compliance and enforcement. RULING ELC E103 OF 2025 17 of 24

page 17 of 24

ii) Whether the Defendants had knowledge or proper notice of the order 44.It is noted that the Defendants do not deny knowledge of the court order delivered on 29th January 2026 in the absence of the parties. The formal order was subsequently extracted on 26th February 2026. In the Court’s view, the fact of absence of the parties at the time the ruling was delivered is relevant principally to the question of when the Defendants acquired knowledge of the order. The order itself remained a valid order of the Court. 45.The Applicants’ evidence is that the extracted order was served upon the Defendants’ advocates on 27th February 2026. The copy of the letter dated 27th February 2026 forwarding the order bears the receiving stamp of Mukuna Eshuchi & Associates, being the advocates on record for the Defendants. The receiving corroborates the Applicants’ assertion that the extracted order was delivered to and received by the Defendants’ advocates. A reminder was sent to the said advocates by a letter received and stamped on 13th March 2026. 46. Further evidence of knowledge of the court order is the fact that the Defendants filed the Notice of Motion dated 23rd February 2026 seeking to review, vary and/or set aside the ruling and orders issued on 29 th January 2026. The Defendants attached the ruling sought to be reviewed. The entire supporting RULING ELC E103 OF 2025 18 of 24

page 18 of 24

affidavit is an unequivocal admission of knowledge of the court order even before the same was served on the advocates for the Defendant. 47.The Court is therefore satisfied that the Defendants had notice of the terms of the order personally and through their advocates on record. The Court of Appeal in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR held as follows: “Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” iii) Whether the Defendants acted in breach of the order 57.The Applicants assert that the Defendants failed to restore them into vacant possession. They state that they visited the suit premises on 11th March 2026, established that the order had not been complied with and thereafter, RULING ELC E103 OF 2025 19 of 24

page 19 of 24

by a letter dated 13th March 2026, demanded compliance by 16th March 2026. The contempt proceedings were subsequently commenced on 17th March 2026. 58.The Defendants, on the other hand contend that the allegation of blatant contempt is premature, unfounded and does not reflect the circumstances obtaining in relation to the suit property. They acknowledge that compliance with a court order is a serious legal obligation but deny that the Applicants were denied vacant possession through any wrongful act or omission on his part. 59.The Defendants state that the status of the suit property is complex and involves competing claims of ownership which remain pending determination before the Court. He therefore denies having acted in a manner that undermines the authority of the Court or caused the Applicants hardship or loss. The 2nd Respondent asserts that he has taken all necessary steps within his ability to comply with the Court order. 60. In what the court considers an apparent departure from the not so clear position taken in the replying affidavit, the Counsel for the Defendants in the written submissions stated that the Applicants had vacated the suit premises, that the premises were vacant and unobstructed, and that the Applicants were at liberty to take possession. Counsel contended that that RULING ELC E103 OF 2025 20 of 24

page 20 of 24

the applicants had complied with order (a) and that any failure by the Applicants to enter or take possession could not constitute contempt on their part. The above assertion was not made in the replying affidavits of the Respondent. In the Court’s view, if this assertion was true, nothing prevented the Defendant’s from stating so in clear, unequivocal terms in the replying affidavit filed. 61.From the foregoing, the Court finds that the assertion that the Defendant’s had vacated the suit premises is untrue and an afterthought. v) Whether the alleged breach was deliberate 70.Even where a breach of an order is alleged, contempt requires more than mere non-compliance. The Applicants must establish that the disobedience was deliberate and willful. 71.Given that contempt of court proceedings is quasi-criminal in nature, and that the liberty of the citees is at stake, then the degree of proof must be in the required standard. In the case of Gatharia K. Mutitika vs Baharini Farm Ltd (1985) klr 227, the court held; “In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to RULING ELC E103 OF 2025 21 of 24

page 21 of 24

be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” 72.Applying the above standard to the present matter, the Court is satisfied that the Defendants had notice of the order by 23rd February 2026, when they filed the application for review of the court order. The question is therefore not whether the Defendants knew of the order, but whether the Applicants have established what the Defendants did or failed to do after acquiring such knowledge and whether that conduct amounted to deliberate disobedience of orders (a) and/or (b). 73.The Applicants’ visit to the property on 11th March 2026 and their subsequent letter of 13th March 2026 demonstrate that the order had not been complied with. The Defendants did not respond to the demand for compliance with the Court orders. The Defendants do not, unequivocally deny the fact of noncompliance and make no assertion in the sworn affidavit that they had vacated the premises and that the premises were vacant. The Court is satisfied that the non-compliance with the court order was deliberate. 74.The Court thus finds that the Applicants have established the existence of a clear, unambiguous and binding order issued on 29th January 2026 and have further established that the Defendants acquired notice of that order on/or before 23rd February 2026 and were further served with the orders on 27th RULING ELC E103 OF 2025 22 of 24

page 22 of 24

February 2026 and 13th March 2026 through their advocates on record. Further, the Court finds that the Applicants have established to the requisite standard that, after acquiring notice, the Defendants deliberately and willfully breached order (a) requiring restoration into vacant possession and/or order (b) restraining interference with the Applicants’ quiet possession and occupation. Final Orders 75.The Court finds that the notice of motion dated 17th March 2026 has merit and the same is allowed as follows; 1. The Defendants/Respondents are hereby found to be in contempt of the orders issued on 29th January 2026 by Hon. Lady Justice Judy Omange. 2. It is further ordered that the Defendants/Respondents shall restore the Plaintiffs into vacant possession of the suit premises within 7 days from the date of this order and comply with the further orders issued on 29 th January 2026. 3. The Officer Commanding Station (OCS) of the Makongeni Police Station is hereby directed to ensure compliance with the orders of this Court. RULING ELC E103 OF 2025 23 of 24

page 23 of 24

4. It is further ordered that the Defendants/Respondents shall personally appear before this court on 6th October 2026 for mitigation and sentencing. Delivered, dated and signed via Microsoft Teams this 24th day of September 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT The Ruling read in the presence ofOdongo for Plaintiff/Applicant Okumu Holding Brief for Mukuna for Defendant N/A for interested Parties RULING ELC E103 OF 2025 24 of 24

page 24 of 24