Grace Akinyi Omware v Theresia Mueni Ndeti (Sued as the administrator of the Estate of Albert Athanas Makau Kyambo, Deceased) & another; Saadia Ali Alio (Interested Party)

SAADIA ALI ALIO......................................................INTERESTED PARTY RULING Introduction 1. Before this Court is the 2nd Defendant’s Notice of Motion dated 20th July 2026, brought under Articles 40, 48, 50(1), 159(2)(d) and 162(2)(b) of the Constitution; Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act; Section 29 of the Environment and Land Court Act; Order 40 Rules 3 and 10 and Order 51 Rule 1 of the Civil Procedure Rules. The Application seeks the following orders: a. Spent. b. Spent. c. Pending the hearing and determination of this Application, this Honourable Court be pleased to order that the status quo orders issued on 19th September 2024 and extended on 12th November 2024 pending ELCLC E031/2026 RULING 2

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the hearing and determination of this suit, to the effect that no party shall interfere in any manner whatsoever with Land Reference Number 12715/374, be strictly observed, preserved and maintained. d. This Honourable Court be pleased to order the Interested Party/Respondent, Ms. Saadia Ali Alio, to forthwith cease and desist from all construction, excavation, development and/or any other interference whatsoever with Land Reference Number 12715/374 in breach of the status quo orders issued on 19th September 2024 and extended on 12th November 2024 pending the hearing and determination of this suit. e. The Interested Party/Respondent, Ms. Saadia Ali Alio, be ordered to attend Court personally on a date to be fixed by this Honourable Court and show cause why she ELCLC E031/2026 RULING 3

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should not be cited and punished for contempt of the orders issued on 19th September 2024. f. This Honourable Court be pleased to find and declare that the Interested Party/Respondent, Ms. Saadia Ali Alio, is in contempt of Court for knowingly, deliberately and wilfully disobeying the status quo orders issued on 19th September 2024 and extended on 12th November 2024 pending the hearing and determination of this suit. g. Upon finding the Interested Party/Respondent guilty of contempt, this Honourable Court be pleased to impose such punishment as is provided under Section 29 of the Environment and Land Court Act, Section 5 of the Judicature Act and Order 40 Rule 3 of the Civil Procedure Rules, including a fine, committal to civil jail, attachment of ELCLC E031/2026 RULING 4

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property and/or such other sanction as this Honourable Court may deem fit and appropriate. h. This Honourable Court be pleased to order the Interested Party/Respondent to remove, at her sole cost, all structures, building materials, undertaken developments or deposited and/or works upon Land Reference Number 12715/374 in breach of the status quo orders issued on 19th September 2024 and extended on 12 th November 2024, and to restore the suit property to the condition obtaining before the breach. i. The Officer Commanding Station, Syokimau Police Station, be directed to enforce and ensure strict compliance with the orders issued on 19th September 2024 and the further ELCLC E031/2026 RULING orders issued pursuant to this 5

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Application, and to maintain law and order during any site visit ordered by this Honourable Court. j. The costs of this Application by the personally be borne Interested Party/Respondent. k. This Honourable Court be pleased to make such further or other orders as it may deem just, necessary and expedient for the enforcement of its 2. The Application is premised on the grounds appearing on its face and is supported by the affidavit of Jonathan Musyoka Nzau, the 2nd Defendant. Background 3. This dispute relates to 12715/374, I.R. No. 44857. Land Reference Number The 2nd Defendant alleges that he is the registered proprietor of Land Reference Number 12715/374, I.R. No. 44857. He purchased the property from the late Albert Athanas Makau Kyambo ELCLC E031/2026 RULING 6

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under a Sale Agreement dated 11th April 2022 and was registered as proprietor on 24th May 2022. The Plaintiff, the 1st Defendant and the Interested Party competing claims over the suit property assert and the purported subdivisions arising from it. The Interested Party claims a portion of the suit property which she identifies as Land Reference Number 12715/11778. 4. On 19th September 2024, this Court issued an order in the following terms. "I have considered the Certificate of Urgency dated the 18th September, 2024 together with the supporting affidavit of ALPHONCE MUTINDA as well as the Orders issued on 16th September, 2024 in respect to the Notice of Motion application dated the 13th September, 2024 and make the following Orders: a) The Notice of Motion application dated the 13th September, 2024 is fixed for mention ELCLC E031/2026 RULING 7

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on 30th September, 2024 for further directions. b) Obtaining Status Quo to be maintained until then, where no party should interfere with LR No. 12715/374 in any manner whatsoever." 7. The order was extended on 19th March 2025. It has not been reviewed, varied, stayed, discharged or set aside. It remains in force pending the hearing and determination of the suit. 8. On 20th July 2026, the 2nd Defendant filed the present application. The Applicant’s Case 9. The Applicant's case is set out in his Supporting Affidavit sworn on 20th July 2026 and his Further Affidavit sworn on 29th July 2026. The Applicant deposes that the status quo ELCLC E031/2026 RULING 8

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orders of 19th September 2024 and 19th March 2025 remain valid, binding and enforceable against all parties. They have never been reviewed, varied, discharged, stayed or set aside. 10. The Applicant deposes that the Interested Party had actual and personal knowledge of the orders. In her Supporting Affidavit filed in support of her Notice of Motion dated 4th October 2024, the Interested Party admitted that she was served with the order on 1 st October 2024 while at the property she claims as Land Reference Number 12715/11778. She subsequently moved the Court seeking review and setting aside of the order. 11. The Applicant deposes that, notwithstanding her knowledge of the orders, the Interested Party has deliberately continued undertaking or permitting construction and development upon the suit property. ELCLC E031/2026 RULING 9

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12. The Applicant deposes that on 8th July 2026 he visited the suit property and personally observed ongoing construction of permanent structures. The works were situated on the portion of the suit property which the Interested Party claims as Land Reference Number 12715/11778. The construction was being undertaken by persons acting under the authority, instructions or control of the Interested Party. 13. The Applicant states that he took photographs of the ongoing works using his mobile telephone. He has filed a certificate under Section 106B of the Evidence Act authenticating the photographs. He has also exhibited photographs showing the condition of the suit property before the impugned construction commenced. 14. The Applicant deposes that further visits on 24 th and 26th July 2026 revealed continuing construction at several locations within the parent parcel. ELCLC E031/2026 RULING 10

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15. The Applicant deposes that the Interested Party has not sought or obtained the leave of this Court to undertake any construction, development or excavation upon the suit property. Her conduct is in direct violation of the status quo orders. 16. The Applicant deposes that continued construction risks creating an irreversible state of affairs, increasing the cost and difficulty of restoring the property and rendering the eventual judgment of this Court ineffectual. He seeks an inspection of the suit property by the Court or, alternatively, by the Deputy Registrar accompanied by the Machakos County Surveyor and the Land Registrar. The Interested Party's Case 17. The Interested Party opposes the application through her Replying Affidavit sworn on 3 rd August 2026. The Interested Party deposes that she has not disobeyed the court order as alleged by the Applicant. She deposes that the application is brought in bad faith. ELCLC E031/2026 RULING 11

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18. The Interested Party deposes that since the status quo orders were issued, she has not in any way proceeded with the development alleged on her plot, Land Reference Number 12715/11778. She deposes that she stopped the development in compliance with the court order. In support of her case, the Interested Party has attached photographs marked "SAAI" which she says confirm that no development is taking place on Land Reference Number 12715/11778. 19. The Interested Party deposes that she is aware that there are developments going on within the area, but on different plots over which she has no control. The Interested Party deposes that it is in bad faith for the Applicant to seek to commit her for contempt on developments over which she has no control. 20. The Interested Party states that the photographs attached to the Applicant's application and further affidavit are ELCLC E031/2026 RULING 12

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photographs taken of development on other plots and not her plot. She asks that the application be dismissed with costs. The Other Parties 21. The Plaintiff and the 1st Defendant did not file any responses to the Application. Submissions 22. Pursuant to the directions of 23 rd July 2026, the Applicant filed written submissions dated 4th September 2026. The Interested Party did not file written submissions. The Plaintiff and the 1st Defendant did not file written submissions. 23. The Applicant identifies two issues. First, whether the Interested Party is in contempt of the orders of 19 th September 2024 and 19th March 2025. Second, whether the Applicant is entitled to the reliefs sought. ELCLC E031/2026 RULING 13

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24. On the law, the Applicant relies on Section 29 of the Environment and Land Court Act, which provides that any person who refuses, fails or neglects to obey an order or direction of the Court given under the Act commits an offence and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both. 25. On the elements of contempt, the Applicant relies on Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR), where the Court stated that the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure by the respondent to comply with the terms of the order. 26. On the terms of the order, the Applicant submits that the order of 19th September 2024 was clear, unambiguous and binding on all parties. It identified the affected property and prohibited any party from interfering with it in any manner. ELCLC E031/2026 RULING 14

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27. On knowledge, the Applicant submits that the Interested Party admitted in the affidavit supporting her Notice of Motion dated 4th October 2024 that she had been personally served with the order on 1st October 2024. He relies on her depositions that she was served while at her property and that the order directed the maintenance of status quo on Land Reference Number 12715/374. He submits that her subsequent application for review and setting aside further demonstrates that she understood the terms of the order. 28. On breach, the Applicant submits that a comparison of the photographs taken when the order was issued and those taken on 8th, 24th and 26th July 2026 shows that land which previously had no permanent buildings subsequently contained completed and partially constructed structures, workers, equipment, building materials and construction vehicles. He submits that the construction was undertaken within Land Reference Number 12715/374, including the portion claimed by the Interested Party as Land Reference ELCLC E031/2026 RULING 15

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Number 12715/11778, and that this amounted to deliberate disobedience. 29. On the purpose of the order, the Applicant submits that the status quo was intended to preserve the suit property pending determination of the competing proprietary claims. Continued construction would defeat that purpose and allow a party acting in disobedience to obtain an advantage over compliant parties. 30. The Applicant asks the Court to find the Interested Party in contempt, impose punishment, direct cessation of construction, order removal of structures, direct police enforcement, and award costs. Issues for Determination 31. Having considered the Application, the affidavits filed by the parties, the Applicant’s submissions, the law and ELCLC E031/2026 RULING 16

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authorities relied upon, the following issues arise for determination: a. Whether the Interested Party is in contempt of the status quo orders issued on 19th September 2024; b. Whether a site inspection should be ordered. c. Whether the Applicant is entitled to the remaining reliefs. d. costs. Analysis and Determination Whether the Interested Party is in contempt of the status quo orders issued on 19th September 2024 32. Contempt of court proceedings serve the important purpose of protecting the authority and dignity of the Court and ensuring obedience to its orders. However, because a finding of contempt may result in the deprivation of a person’s ELCLC E031/2026 RULING liberty, the jurisdiction must be exercised 17

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cautiously and only upon strict proof of the alleged disobedience. 33. 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 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." 34. 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 ELCLC E031/2026 RULING 18

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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; 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." 35. 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 ELCLC E031/2026 RULING 19

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separately and numerically, each alleged act of contempt and be supported by affidavit(s) containing all the evidence relied upon. 36. 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 to imprisonment for a term not exceeding two years or to a fine not exceeding one million shillings or to both." 37. I now address the question whether the Applicant has established any basis for the orders sought. 38. The elements of civil contempt were comprehensively stated in Mweru & others v National Land Commission ELCLC E031/2026 RULING 20

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& 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:1. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; 2. the defendant had knowledge of or proper notice of the terms of the order; 3. the defendant has acted in breach of the terms of the order; and 4. the defendant's conduct was deliberate.” 39. The standard of proof in civil contempt proceedings higher than proof on the balance of probabilities, almost but not ELCLC E031/2026 RULING 21

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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.” 40. Applying those principles to the present case, I turn to the elements. 41. There is no dispute concerning the existence of the order of 19th September 2024. The order maintained the status quo on Land Reference Number 12715/374. It provided as follows. ELCLC E031/2026 RULING 22

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"Obtaining Status Quo to be maintained until then, where no party should interfere with LR No. 12715/374 in any manner whatsoever." 42. I am satisfied that the terms of the order were clear and unambiguous. The order identified the property to which it applied. It prohibited interference with that property in any manner. It bound the parties and their agents. The first element of civil contempt is therefore established. 43. The same is true of the question of knowledge. The Interested Party does not contend that she was unaware of the order. In her affidavit sworn on 3 rd August 2026, she acknowledges knowledge of the order and refers to the requirement that the status quo in respect of L.R. No. 12715/374 be maintained. She subsequently moved the Court for review and setting aside of the order. That conduct leaves no real question as to whether she understood the existence and effect of the order. I ELCLC E031/2026 RULING 23

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therefore find that the requirement of knowledge has been established. 44. I turn, therefore, to the third element, which is breach. The order of 19th September 2024 prohibited interference with Land Reference Number 12715/374 in any manner whatsoever. The Interested Party says the parcel she claims is Land Reference Number 12715/11778, a subdivision of the parent parcel. The Applicant says the construction complained of was undertaken within the parent parcel, including on the portion the Interested Party claims. The dispute therefore turns on two questions. First, where is the construction situated in relation to the boundaries of the protected property? Second, by whom was it undertaken? 45. The Applicant relies on photographs taken on 8 th, 24th and 26th July 2026. Those photographs show completed and partially constructed structures, workers, equipment and building materials. The Interested Party, for her part, relies ELCLC E031/2026 RULING 24

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on her own photographs, marked “SAAI”. She says they show that no development is taking place on Land Reference Number 12715/11778, and that the works appearing in the Applicant’s photographs are on other plots over which she has no control. 46. Both sets of photographs establish, and I accept, that construction is taking place within the wider area. What they do not establish is the location of that construction in relation to the boundaries of Land Reference Number 12715/374, which is the subject of the order. The photographs do not disclose any feature from which the Court can determine, with the certainty required in contempt proceedings, that the works depicted are within the disputed parcel rather than on one of the neighbouring parcels. A photograph of a building under construction is a photograph of a building under construction. It does not identify the land on which the building stands. To identify that land, the Court requires evidence connecting the works depicted to the parcel protected by the order. A ELCLC E031/2026 RULING 25

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surveyor’s report, a georeferenced plan or evidence of some physical feature fixing the location of the works would have provided that connection. No such evidence has been provided by the Applicant. 47. In the absence of verified or expert evidence establishing the location of the alleged breach, I am unable to hold that the Applicant has established breach to the required standard. The evidence establishes that construction is taking place within the wider area. What it does not establish, to the standard required in contempt proceedings, is that the construction was undertaken within the portion protected by the order, or that it was undertaken by or at the instance of the Interested Party. Those matters constitute the substance of the alleged breach. In their absence, the third element of contempt has not been proved to the required standard. 48. I find comfort in the decision of the Court of Appeal in Mbogoh ELCLC E031/2026 RULING (suing as the administrator and legal 26

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representative of the Estate of the late Benson C Mbogoh) & 2 others [2026] KECA 294 (KLR) v Juma & where the Court 65 others 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 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 ELCLC E031/2026 RULING 27

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anywhere on planet Earth. Evidently, the Applicants appear to have produced photographs of random and unspecified buildings under construction and proceeded to Respondents allege or their that they agents belong without to the adducing sufficient supporting documentation. Without having produced any concrete material to support the allegations of contempt, we find them to be farfetched and agree with the Respondents that this is tantamount to sending this Court on a “wild goose chase”.” 49. I do not consider it necessary, in those circumstances, to embark upon an extended examination of whether the 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. ELCLC E031/2026 RULING 28

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Site visit 50. The Applicant has 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 may assist the Court in understanding and evaluating evidence placed before it. It should not, however, be used to relieve a party of the burden of establishing the essential elements of its case through appropriate evidence. 51. The Plaintiff seeks a site visit under Order 18 Rule 11 of the Civil Procedure Rules. In Chira & 2 others v Kenya Power & Lighting Company Limited [2022] KEELC 2519 (KLR), this Court held that a site visit is not a tool for a party to collect evidence. Its purpose is to clarify evidence already tendered, not to fill a gap in a party's case. ELCLC E031/2026 RULING 29

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52. In the circumstances, I find it unnecessary to undertake a site inspection. In any event, the file is transferred to the Mavoko Environment and Land Court for hearing and determination of the substantive dispute. The 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. Other reliefs sought 53. The Applicant has sought further reliefs arising from the alleged breach, including orders directed at the construction complained of. 54. The Court has not, however, been able to establish from the evidence before it that the construction is taking place within L.R. No. 12715/374 or that the Interested Party is responsible for it. The Court cannot therefore issue orders requiring the Interested Party to cease construction or remove structures where neither the location of the construction nor responsibility for it has been established. Accordingly, the consequential reliefs are declined. ELCLC E031/2026 RULING 30

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55. For the avoidance of doubt, the orders made on 19th September 2024 and extended on 19th March 2025 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. 56. In the result, the Notice of Motion dated 20 th July, 2026 is dismissed and I Order as follows: a) The File is transferred to Environment and Land Court in Mavoko for hearing and determination. b) The Applicant is at liberty to pursue the request for a site visit under Order 18 rule 11 of the Civil Procedure Rules before the Mavoko Environment and Land Court upon transfer of the file. ELCLC E031/2026 RULING 31

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c) 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. Mr. Alosa Advocate for the 2nd Defendant. Mr. Tangara Advocate holding brief for Mr. Omondi for the 1 st Defendant. Mr. Jaleny Advocate for the Plaintiff. Mr. Ochanda Advocate for 2nd Interested Party. ELCLC E031/2026 RULING 32

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