Hassan Mohamed Mohamud v Tamari Residence Limited & 8 others

1. This Ruling determines the Plaintiff's Notice of Motion dated 29th May 2026, brought under Order 40 and Order 51 of the Civil Procedure Rules, 2010, Sections 3A and 63(c) of the Civil Procedure Act and Section 5 of the Judicature Act. 2. The Application arises from the ruling of this Court delivered on 17th March 2026. By that ruling, the Court ordered that status quo be maintained on Land Reference Number 29506, IR No. 180098. The status quo order applied to the portion allegedly encroached upon by the Defendants as identified in the 2nd intended interested party's report of 26 th May 2025. 3. The Court defined "status quo" to mean that there shall be no further dealings with, transacting on, entering, trespassing, fencing, taking-over, damaging, constructing on, developing, marketing, offering for sale, selling, transferring, charging, alienating or in any other manner dealing with the portion of Land Reference Number 29506, IR No. 180098 to the extent ELCLC E011/2024 RULING 2

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of the portion allegedly encroached by the defendants as identified in the 2nd intended interested party's report of 26/05/2025 and filed in court on 4/06/2025 by either of the parties, their proxies, agents, servants, employees and/or any other person acting on their behalf. 4. Order No. 12 of the order issued on 17 th March, 2026 further provided that no further applications would be entertained without leave. 5. In the Application before Court, the Plaintiff alleges that the Defendants have breached the order of 17th March 2026 by continuing construction on the protected portion. The Defendants deny the allegation and assert compliance. 6. The Plaintiff therefore seeks the following orders: a) Spent. b) THAT this Honourable Court be pleased to grant leave ELCLC E011/2024 RULING to the Applicant to file the present 3

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Application pursuant to and/or in compliance with the Orders issued by this Honourable Court on 17th March 2026; c) THAT this Honourable Court do cite DANSON MANJEWA NYANGE, CALEB KARICHU THUKU, SIMON GACHARI NJOROGE, JOHN GITAU MUIRURI, CAROLINE NYAKUNDI, GEORGIANAH MUTHONI NG'ENO and LAWRENCE KIPKORIR NGENO, the 1st Defendant's Directors, for being in contempt of the Court Orders issued on 29th November 2024, 21st June 2025 and 17th March 2026; d) THAT this Honourable Court be pleased to order the said directors to be arrested and brought before this Honourable Court for sentencing and/or committal to civil jail for a period the court may determine and be ordered to personally pay such sum of monies as the court may determine as a penalty for deliberately defying and violating the orders of this Honourable Court; ELCLC E011/2024 RULING 4

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e) THAT this Honourable Court do order for a site visit to establish the extent of construction that has been done on the encroached portion of Land Reference Number 29506, IR No. 180098; f) THAT any other order the Court may deem fit in the circumstances; g) THAT an order that costs occasioned by this Application be borne by the Defendants herein The Plaintiff's Case 7. The Plaintiff relies on his Supporting Affidavit sworn on 29 th May 2026. He deposes that the order of 17 th March 2026 was clear and unambiguous, the Court having defined the status quo in express terms. He further deposes that the orders were delivered in the presence of counsel for all parties and were served upon the Defendants together with a Penal Notice. ELCLC E011/2024 RULING 5

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8. The Plaintiff avers that the Defendants have continued constructing on the protected portion. He states that the construction covers the entire building, including the area already marked as encroached. 9. The Plaintiff characterises the Defendants' conduct as the grossest, most contemptuous and most callous disobedience of valid court orders. He maintains that the terms of the orders were plain, obvious, unambiguous and unequivocal. 10. The Plaintiff exhibited photographs to his Supporting Affidavit, marked “HMM-6”. The photographs bear a date stamp of 8th May 2026 and show a multi-storey building under construction, covered in scaffolding. They do not, however, identify the location of the building by reference to the boundary of the protected portion. The Plaintiff also relies on the Survey Report dated 26 th May 2025, which identified the encroached portion. The Defendants' Case ELCLC E011/2024 RULING 6

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11. The Defendants' case is set out in the Replying Affidavit of Simon Gachari Njoroge, the 5th Defendant, sworn on 9th July 2026. The 5th Defendant deposes that he is a director of the 1st Defendant and is authorised to swear the affidavit on behalf of all the Defendants. 12. The 5th Defendant deposes that the Plaintiff filed the application without seeking the leave required by Order 12 of the extracted orders. He states that no order granting such leave has been exhibited. 13. The 5th Defendant states that Orders 9 and 10 were limited to the specific portion identified in the Survey Report and did not prohibit all activity on the suit property. 14. He deposes that the Defendants have complied with the orders and have undertaken no construction, development, fencing or entry on the protected portion. According to him, any lawful activity undertaken by the Defendants has been outside the identified area. ELCLC E011/2024 RULING 7

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15. The 5th Defendant further deposes that the Plaintiff has produced no credible evidence that the Defendants have constructed on the protected portion and contends that the application invites the Court to act on speculation. 16. The 5th Defendant deposes that the Defendants' advocates wrote to the Plaintiff's advocates on 20 th May 2026 informing them that the Defendants had complied with Orders 9 and 10. The letter stated that construction was confined to portions outside the identified area and enclosed photographs. 17. The Defendants exhibited those photographs to the Replying Affidavit, marked “SGN-2(b)”. They show a green mesh barrier and red-and-white tape cordoning off an area of land. The photographs do not, however, identify the location of the cordon by reference to the boundary of the protected portion. ELCLC E011/2024 RULING 8

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18. The 5th Defendant deposes that the Plaintiff has failed to distinguish between activity outside the identified portion and activity within it. He contends that the application is an attempt to expand, vary or re-litigate the status quo orders. 19. The 5th Defendant further deposes that this Court is functus officio in relation to the interim preservation regime and contends that the application is res judicata and an abuse of the process of the Court. Finally, the 5th Defendant deposes that the application is intended to harass the Defendants, delay the proceedings and multiply interlocutory applications. SUBMISSIONS The Plaintiff's Submissions 20. The Plaintiff filed written submissions dated 10 th August 2026 through Hassan N. Lakicha & Company Advocates. The Plaintiff advances three propositions in support of the application. ELCLC E011/2024 RULING 9

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21. First, on leave, the Plaintiff submits that leave should be granted because the application seeks enforcement of the Court's own orders rather than the introduction of a new or distinct issue. The Plaintiff relies on Section 3A of the Civil Procedure Act and Articles 48 and 50 of the Constitution, and urges the Court to prioritise substantive justice over procedural technicalities. 22. Second, on contempt, the Plaintiff submits that the Defendants have wilfully disobeyed the order of 17 th March 2026 by continuing construction on the protected portion. The Plaintiff relies on Samuel M.N. Mweru & Others v National Land Commission & 2 others [2020] eKLR for the elements of civil contempt. On the purpose of a status quo order, the Plaintiff relies on Republic v National Environment Tribunal, Ex-Parte Palm Homes Limited [2013] eKLR and TSS Spinning & Weaving Company Limited v NIC Bank Limited [2020] eKLR. ELCLC E011/2024 RULING 10

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23. Third, on the site visit, the Plaintiff submits that a site visit is necessary to enable the Court to ascertain the current status on the ground. The Plaintiff relies on Order 18 Rule 11 of the Civil Procedure Rules and the decisions in Juma Juma Kanga & 299 others v Abdulkadir Ahmed Rahmkhian [2021] KEELC 3093 (KLR) and Waiyaki v Kajiado County Government [2025] KEELC 5567 (KLR). The Defendants' Submissions 24. The Defendants filed written submissions dated 13 th August 2026 through FMC Advocates LLP. The Defendants advance four propositions in opposition to the application. They are represented by counsel. 25. First, on procedure, the Defendants submit that the application is incompetent, having been filed without the leave required by Order 12 of the extracted orders. They rely on Ketno Sacco & 2 others v Namu [2022] KEHC 16124 (KLR) and Omar v Mag [2022] KEHC 13571 (KLR). ELCLC E011/2024 RULING 11

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26. Second, on contempt, the Defendants submit that the Plaintiff has not discharged the burden of proving contempt to the required standard. They contend that no survey report, expert affidavit or geospatial evidence has been produced to demonstrate breach. They rely on Kirui v Toweet [2022] KEELC 2472 (KLR) and Alfred Mutua v Boniface Mwangi [2022] KEHC 14231 (KLR). 27. Third, on the site visit, the Defendants submit that a site visit cannot cure an evidentiary deficiency in a contempt application. They rely on Waitiki v Kenya Power & Lighting Co. Limited [2022] KEELC 13795 (KLR) and Charles Mukoma Chira & 2 Others v KPLC [2022] eKLR. 28. Fourth, on costs, the Defendants submit that costs should follow the event and be awarded on a punitive basis. They rely on section 27(1) of the Civil Procedure Act. Issues for Determination ELCLC E011/2024 RULING 12

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29. Having considered the application, the affidavits on record, the annexures thereto, the submissions and the authorities cited, four issues arise for determination: a) Whether the application is procedurally defective for want of leave; b) Whether the Plaintiff has proved contempt to the required standard; c) Whether a site visit is merited; d) Who bears the costs of this Application. Analysis and Determination Whether the application is procedurally defective for want of leave 30. The Court is empowered to issue directions for the conduct and management of proceedings. On 17 th March 2026, the Court issued orders regulating further applications in the suit. Order 12 provided that no other or further applications would be entertained without leave of the Court. ELCLC E011/2024 RULING 13

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31. It is common ground that the Plaintiff filed the present application without first seeking leave. The Plaintiff nevertheless seeks, in prayer 2 of the application, leave to institute the very application now before the Court. The Defendants contend that this is impermissible. They rely on Ketno Sacco & 2 others v Namu [2022] KEHC 16124 (KLR) and Omar v Mag [2022] KEHC 13571 (KLR], the latter holding that an application filed without the requisite leave cannot be cured retrospectively through the application itself. 32. Order No. 12 of this Court’s orders issued on 17th March, 2026 was issued as a case management direction to regulate the filing of further applications and ensure the orderly conduct of the proceedings. The present application, however, concerns alleged disobedience of orders issued by this Court. The Court has a duty to ensure that its orders are obeyed and must, in an appropriate case, be able to address alleged disobedience of those orders. That, in my view, ELCLC E011/2024 RULING 14

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constitutes a good reason for the Court to overlook the requirement for prior leave under the order. 33. I therefore find that, although the Plaintiff ought to have sought leave before filing the application, the failure to do so does not, in the circumstances of this case, bar the Court from determining the allegation that its orders of 17 th March 2026 were disobeyed. Whether the Plaintiff has proved contempt to the required standard 34. I turn to the second issue, which is whether the Respondents are in contempt of the Orders issued by this Court on 17th March, 2026. 35. The power of this Court to punish for contempt of court is conferred by Section 5(1) of the Judicature Act (Cap. 8), which provides: "The High Court and the Court of Appeal shall have the same power to punish for contempt of ELCLC E011/2024 RULING 15

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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." 36. By virtue of section 5(1) of the Judicature Act, the contempt jurisdiction of this Court is informed by the law for the time being in force in England. In exercising that jurisdiction, the Court must therefore have regard to the applicable procedural requirements under Part 81 of the English Civil Procedure Rules (CPR). Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedure for four different forms of violations. i. Rules 81.4 relates to committal for "breach of a judgement, order or undertaking to do or abstain from doing an act."; ii. Rule 81.11- Committal for "interference with the due administration of justice" (applicable only in criminal proceedings; ELCLC E011/2024 RULING 16

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iii. Rule 81.16- Committal for contempt "in the face of the court"), and iv. Rule 81.17- Committal for "making false statement of truth or disclosure statement." 37. An application under Rule 81.4 (breach of judgement, order or undertaking) now referred to as "application notice" (as opposed to a notice of motion) is the relevant one for making the application now under consideration. The application notice must set out fully the grounds on which the committal application is made and must identify separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. 38. Section 29 of the Environment and Land Court Act provides the penalty for disobedience of orders of this Court. It provides: "Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act commits an offence, and shall, on conviction, be liable ELCLC E011/2024 RULING 17

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to imprisonment for a term not exceeding two years or to a fine not exceeding one million shillings or to both." 39. I now address the question whether the Applicant has established the alleged acts of disobedience to the standard required in contempt proceedings. 40. The elements of civil contempt were comprehensively stated in Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR), drawing from the learned authors of Contempt in Modern New Zealand. The Court expressed itself as follows: “There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:i. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; ii. the defendant had knowledge of or proper notice of the terms of the order; ELCLC E011/2024 RULING 18

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iii. the defendant has acted in breach of the terms of the order; and iv. the defendant's conduct was deliberate.” 41. The standard of proof in civil contempt proceedings higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) the Court held as follows: “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. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases.” 42. There is no dispute in the present case concerning the existence of the order of 17 th March 2026. The order maintained the prevailing status quo on L.R. No. 29506, I.R. No. 180098 in respect of the portion identified in the ELCLC E011/2024 RULING 19

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Survey Report dated 26th May 2025. Order 10 defined what the status quo meant. It provided as follows: "THAT status quo means that from the date of issuance of this order, there shall be no further dealings with, trespassing, transacting fencing, on, entering, taking-over, damaging, constructing on, developing, marketing, offering for sale, selling, transferring, charging, alienating or in any other manner dealing with the portion of Land Reference Number 29506, IR No. 180098 to the extent of the portion allegedly encroached by the defendants as identified in the 2nd intended interested party's report of 26th May 2025 and filed in court on 4th June 2025 by either of the parties, their proxies, agents, servants, employees and/or any other person acting on their behalf." 43. I am satisfied that the terms of the order were clear and unambiguous. The order identified the portion to which it ELCLC E011/2024 RULING 20

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applied by reference to the Survey Report. It specified in plain terms the acts that were prohibited. It bound the Respondents and their agents. The first element of civil contempt is therefore established. 44. I am equally satisfied that the Respondents had knowledge of the order. They are parties to this suit and are represented by counsel. More importantly, their Replying Affidavit expressly acknowledges the order and asserts compliance with it. The question of knowledge therefore does not arise for determination. 45. The issue, therefore, is whether the Applicant has established non-compliance with the order and, if so, whether the conduct complained of was deliberate. The Court must first determine whether the act alleged to constitute the breach has been proved on the evidence. Only if breach is established does the question of deliberate disobedience arise. ELCLC E011/2024 RULING 21

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46. The Applicant's case is that construction continued on the disputed portion after the order was made. The Applicant has placed before the Court a series of photographs depicting construction activities at the site. The Respondents do not dispute that construction has taken place. Their case is that the construction was undertaken outside the portion protected by the order and that the protected area was cordoned off. They have relied on their own photographs and correspondence of 20th May 2026 in support of that position. The issue, therefore, is whether the construction shown in the photographs was undertaken within the portion to which the order relates. 47. The order issued by the Court on 17 th March 2026 did not prohibit construction prohibition was upon directed at the entire property. The the portion identified by reference to the Survey Report dated 26 th May 2025. The allegation of breach must therefore be considered by reference to that portion. The photographs show construction at the site, but they do not show the position of ELCLC E011/2024 RULING 22

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the works in relation to the boundaries of the portion protected by the order. There is no feature in the photographs from which the Court can determine that the works depicted were being undertaken within that portion. The evidence establishes construction at the site, but does not establish that the construction was taking place in the area subject of the Order. 48. The Applicants have attached the Survey Report dated 26 th May 2025. I note that the report identifies the portion to which the order relates. It is the report by reference to which the protected area is capable of being identified. It does not, however, locate the construction shown in the photographs within that area. The report was prepared before the order was made and before the construction complained of is said to have taken place. 49. There ought to have been evidence showing where the construction complained of was taking place in relation to the portion protected by the order. In the absence of that ELCLC E011/2024 RULING 23

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evidence, the Court is unable to find that the construction depicted in the photographs was undertaken within the protected portion. I therefore find that the Applicant has not proved the alleged breach to the standard required in contempt proceedings. 50. The foregoing approach is consistent with the decision of the Court of Appeal in Mbogoh (suing as the administrator and legal representative of the Estate of the late Benson C Mbogoh) & 2 others v Juma & 65 others [2026] KECA 294 (KLR) where the Court stated as follows: “As to whether the 1st 2nd and 3rd Respondents willfully breached the court order, from the material placed before us, we are unable to reach such finding. This is because the photographs attached to the Applicants’ affidavit in support of the Motion and relied upon are inconclusive since they do not indicate when and where they were taken, or who took them. Neither was the ELCLC E011/2024 RULING 24

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context within which they were taken provided. As a consequence, the constructions depicted in the photographs are not shown to be specific to the subject land. In addition, no title deeds or survey plans comprising coordinates that pointed to ownership of the parcels or the location of the constructions was provided. In point of fact, the photographs could have been taken anywhere on planet Earth. Evidently, the Applicants appear to have produced photographs of random and unspecified buildings under construction and proceeded to allege that they belong to the Respondents or their agents without adducing sufficient supporting documentation. Without having produced any concrete material to support the allegations of contempt, we find them to be far-fetched and agree with the Respondents that this is tantamount to sending this Court on a “wild goose chase”.” 51. I do not consider it necessary, in the circumstances, to embark upon an extended examination of whether the ELCLC E011/2024 RULING 25

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alleged conduct was wilful. Wilfulness presupposes proof of the underlying breach. Having found that the Applicant has not established that the construction was undertaken within the protected portion, there is no basis for a finding of deliberate disobedience. 52. The Applicant has also invited the Court to undertake a site inspection. Order 18 rule 11 of the Civil Procedure Rules permits the Court, where it considers it necessary or proper for the purpose of elucidating a matter in dispute, to inspect property or a thing concerning which a question may arise. Such an inspection is intended to assist the Court in determining the matters before it. It does not relieve a party of the obligation to place before the Court evidence establishing the essential elements of its case. 53. In the circumstances of this application, I find it unnecessary to undertake a site inspection. The file is transferred to the Mavoko Environment and Land Court for hearing and determination of the substantive dispute. The ELCLC E011/2024 RULING 26

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Applicant remains at liberty to raise the issue before that Court, which will determine whether a site inspection is necessary for purposes of those proceedings. 54. For the avoidance of doubt, the orders made on 17 th March remain in force until varied, discharged or otherwise dealt with by the Court having jurisdiction over the matter. The parties remain bound by those orders and are required to comply with them. 55. In the result, the Notice of Motion dated 29 th May 2026 is dismissed. I make the following orders: a) The Applicant is granted leave to prosecute the Notice of Motion dated 29th May 2026. b) The File is transferred to Environment and Land Court in Mavoko for hearing and determination. c) The Applicant is at liberty to pursue the request for a site visit under Order 18 rule 11 of the Civil ELCLC E011/2024 RULING 27

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Procedure Rules before the Mavoko Environment and Land Court upon transfer of the file. d) The costs of this Application shall be in the cause. Orders accordingly. Delivered and Dated at Machakos this 1st day of October, 2026. HON. J. N. KUYIONI JUDGE 01.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Fabious Court Assistant. Ms.Abdi Advocate holding brief for SC for Lakicha for the Plaintiff Mr.Asige K. Advocate for the Defendants. ELCLC E011/2024 RULING 28

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