Moses Ndege v David Luyemba

BUKHAYO/MUNDIKA/8767, restore the boundary beacons placed by the surveyor pursuant to the survey report adopted by the Court, an order directing the Officer Commanding Station (OCS) Busia Police Station to assist in the enforcement of the Court’s orders, and costs of the application. 3. The application is supported by the affidavit of Moses Ndege sworn on 15th April 2026. The Applicant depones that this Court heard and determined the dispute between the parties and issued a decree on 29th November 2021. He states that by consent of the parties and their advocates, a survey exercise was conducted and the surveyor’s report was subsequently adopted as an order of the Court. According to the Applicant, the survey confirmed that Land Parcel No. BUKHAYO/MUNDIKA/8766, measuring approximately 0.60 hectares, belongs to the Respondent while Land Parcel No. BUKHAYO/MUNDIKA/8767, measuring approximately 0.80 hectares, belongs to him, and that the boundaries between the two parcels were clearly identified and marked with boundary beacons. BUSIA ELC NO. 175 OF 2016 – RULING Page 2 of 15

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4. The Applicant further avers that following the adoption of the survey report, the suit was marked as settled and the decree has never been appealed against and therefore remains valid and binding upon the parties. He contends that despite being fully aware of the decree and having participated in the survey exercise through counsel, the Respondent has deliberately disobeyed the Court’s orders by encroaching onto Land Parcel No. BUKHAYO/MUNDIKA/8767, removing the boundary beacons placed by the surveyor and extending his cultivation beyond the established boundary by planting maize on the Applicant’s land. 5. It is the Applicant’s case that the Respondent’s continued occupation of a portion of his land has prevented him from fully utilizing the property reflected in his title deed. He further depones that the Respondent has become hostile whenever the issue is raised and that his conduct is likely to occasion conflict between the parties unless restrained by the Court. Consequently, the Applicant maintains that unless the Respondent is cited and punished for contempt, he will BUSIA ELC NO. 175 OF 2016 – RULING Page 3 of 15

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continue undermining the authority and dignity of the Court by deliberately disobeying its lawful orders. BUSIA ELC NO. 175 OF 2016 – RULING Page 4 of 15

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RESPONDENT’S CASE 6. The application is opposed through the Replying Affidavit sworn by David Luyemba, the Respondent. The Respondent terms the application hopeless, bad in law and an abuse of the Court process. As a preliminary point, he depones that the firm of advocates that filed the application was not previously on record for the Applicant at the time judgment was delivered and had not obtained leave to come on record, thereby rendering the application incompetent. 7. On the merits, the Respondent relies on the same surveyor’s report annexed by the Applicant and contends that the report expressly found that the boundaries between Land Parcel Nos. BUKHAYO/MUNDIKA/8766 and 8767 were well defined and intact. He maintains that he is the registered proprietor of Land Parcel No. BUKHAYO/MUNDIKA/8766, has always remained in possession and occupation of his parcel, and has never trespassed onto or occupied the Applicant’s land. 8. The Respondent therefore denies being in breach of the decree issued by the Court and asserts that the Applicant has misconstrued both the decree and the surveyor’s findings. He BUSIA ELC NO. 175 OF 2016 – RULING Page 5 of 15

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further accuses the Applicant of persistently refusing to acknowledge his ownership of Land Parcel No. BUKHAYO/MUNDIKA/8766 and of repeatedly dragging him to court despite the survey report being clear and selfexplanatory. 9. He adds that the Applicant has the benefit of legal representation and fully understands the import of the decree, yet continues to institute unnecessary proceedings, thereby occasioning him needless expense. He accordingly prays that the Notice of Motion dated 15th April 2026 be dismissed with costs. ANALYSIS AND DETERMINATION 10. I have carefully considered the Notice of Motion dated 15 th April 2026, the supporting annextures thereto, Respondent, and affidavit together with the the Replying Affidavit filed by the the applicable law. In my view, the application turns on one central issue, namely whether the Respondent is in willful and deliberate disobedience of the decree and orders of this Court issued on 29 th November 2021 BUSIA ELC NO. 175 OF 2016 – RULING Page 6 of 15

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so as to warrant a finding of contempt and the grant of the consequential enforcement orders sought. 11. The power of a court to punish for contempt is an indispensable attribute of judicial authority. It exists to safeguard the rule of law and ensure that court orders are obeyed. Article 159(1) of the Constitution vests judicial authority in the courts, while Article 10 entrenches the rule of law as one of the national values binding upon all persons. The jurisdiction to punish for contempt is preserved under Section 5 of the Judicature Act and has since been affirmed in re Estate of Waiyaki (Deceased) [2026] KEHC 10364 (KLR), where the Court held that: “The power to punish for contempt is essential for the maintenance of the rule of law, the preservation of judicial authority, and the effective administration of justice” 12. The applicable principles governing civil contempt are now well settled. An applicant must demonstrate that: first, there existed a clear and unambiguous court order binding upon the respondent; second, the respondent had knowledge or notice BUSIA ELC NO. 175 OF 2016 – RULING Page 7 of 15

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of the order; third, the respondent deliberately and willfully disobeyed the order. 13. In the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), the court held that: “Kenya’s growing jurisprudence right from the High Court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for the purposes of contempt proceedings. For instance, Lenaola J in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR pronounced himself as follows: “...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary” 14. Similarly, in the above case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), the Court of Appeal emphatically stated: BUSIA ELC NO. 175 OF 2016 – RULING Page 8 of 15

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“We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot impunity. be allowed Obedience of to trash Court them with orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said: “No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’. 15. In the present case, there is no dispute that this Court rendered judgment and issued a decree on 29 th November 2021. Equally uncontested is the fact that pursuant to the decree, the parties, through their respective advocates, participated in a survey exercise whose report was subsequently adopted as an order of the Court. The Applicant has exhibited both the decree and the survey report. The Respondent himself acknowledges the existence of the decree and the survey report and indeed relies on the latter in BUSIA ELC NO. 175 OF 2016 – RULING Page 9 of 15

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opposing the application. It therefore follows that the first two elements of contempt, namely the existence of a valid court order and the Respondent’s knowledge thereof, have been satisfactorily established. 16. The real question is whether the Applicant has demonstrated, to the requisite standard, that the Respondent deliberately disobeyed the Court’s decree. Although contempt proceedings are civil in nature, the standard of proof is higher than on a balance of probabilities, though not as high as proof beyond reasonable doubt. 17. This principle was stated by the Court of Appeal in Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) where the court held that: “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 difficulty in doubt. courts We envisage determining no the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it BUSIA ELC NO. 175 OF 2016 – RULING Page 10 of 15

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belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi – criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved” 18. The Applicant alleges that the Respondent removed boundary beacons placed by the surveyor, encroached onto Land Parcel No. BUKHAYO/MUNDIKA/8767, and cultivated maize beyond the boundary established during the survey exercise. However, beyond those averments, no independent evidence has been placed before the Court to demonstrate that after the survey report was adopted, the Respondent indeed removed the beacons or subsequently crossed the established boundary. 19. The Applicant did not annex a subsequent survey report, photographs, a report from the Land Registrar or County Surveyor, or any other independent material confirming the alleged fresh encroachment or removal of the boundary marks. BUSIA ELC NO. 175 OF 2016 – RULING Page 11 of 15

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20. On the contrary, the Respondent relies on the very survey report adopted by the Court and points out that it confirmed that the boundaries between parcels BUKHAYO/MUNDIKA/8766 and 8767 were well defined and intact. He denies having encroached upon the Applicant’s land and maintains that he has remained in occupation of his own parcel. 21. This Court is alive to the fact that contempt proceedings are quasi-criminal in nature and carry serious penal consequences, including imprisonment. It is therefore imperative that the evidence of disobedience be clear, cogent and incapable of reasonable doubt. Mere allegations of non-compliance, however strongly made, cannot suffice. 22. Having carefully evaluated the material placed before the Court, I am not persuaded that the Applicant has discharged the heightened evidential burden required to establish willful and deliberate disobedience of the decree. While the decree and the Respondent’s knowledge of it are not in dispute, the alleged acts constituting contempt remain contested and are unsupported by independent evidence capable of proving, to BUSIA ELC NO. 175 OF 2016 – RULING Page 12 of 15

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the requisite standard, that the Respondent removed the boundary beacons or knowingly encroached beyond the boundary fixed by the Court-adopted survey report. 23. It is also noteworthy that some of the substantive orders sought, including orders compelling the Respondent to cease encroachment and restore boundary beacons, presuppose a determination of contested factual matters regarding the current position of the boundary. Such issues are ordinarily established through fresh survey evidence or enforcement proceedings and cannot, without clear proof, form the basis of a finding of contempt. 24. Accordingly, I find that although the Applicant has established the existence of a valid decree and the Respondent’s knowledge thereof, he has failed to prove, to the required standard, that the Respondent willfully and deliberately disobeyed the orders of this Court. The application for committal for contempt therefore cannot succeed. DISPOSITION 25. The upshot of the foregoing analysis is that, save for the prayer seeking leave for the firm of Lukasile & Company BUSIA ELC NO. 175 OF 2016 – RULING Page 13 of 15

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Advocates to come on record after judgment, the Applicant has failed to establish, to the requisite standard, that the Respondent is guilty of willful disobedience of the decree and orders of this Court issued on 29 th November 2021. Consequently, the prayer for committal for contempt and the attendant consequential orders cannot be granted. 26. Accordingly, I make the following orders: a) Leave is hereby granted to the firm of Lukasile & Company Advocates to come on record for the Applicant after judgment. b) The Notice of Motion dated 15 th April 2026 is otherwise dismissed. c) The Respondent shall have the costs of the application. d) It is so ordered. Ruling dated, signed and delivered in open Court on this 1st day of October 2026. C. MUGAMBI JUDGE BUSIA ELC NO. 175 OF 2016 – RULING Page 14 of 15

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1ST OCTOBER 2026 BUSIA ELC NO. 175 OF 2016 – RULING Page 15 of 15

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