David Akoko v James Okombo

Karachuonyo/Kamenya/723, contrary to the court order. 2. THAT the Plaintiff/Respondent be punished by way of committal to jail for a period of six (6) months for the disobedience and/or the plaintiff’s entire suit be struck out. 3. THAT the costs of this application be provided for in favour of the applicant. 2. The application was based on the grounds that Land parcel No. South Karachuonyo/Kamenya/723, the suit land, belonged and was duly registered in the name of the Defendant. On 4 th February, 2020, this Court issued an order for the maintenance of status quo. The orders were issued at the behest of the Plaintiff. But the plaintiff has since treated the order with a lot of contempt by continuing to erect three (3) more semipermanent structures in the suit land, planting of trees, excavating and harvesting sand on the said parcel of land. He also wantonly cut down trees for charcoal burning. He did not even care when asked by area Chief to whom reports about the acts were made. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 2

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3. Further, that on the 22nd July, 2022, the Land Registrar Rachuonyo North/East/South Sub Counties together with the surveyor visited the suit land and carried out measurements in relation to the areas occupied by the respective parties herein. He drew a sketch map and made a report which they duly filed in court. 4. On 8th January, 2026, the County Land Registrar (Homa Bay) and the National Government County Surveyor also visited the suit land parcel No. South Karachuonyo/Kamenya/723 pursuant to the court order issued on 11th November, 2024. They too carried out measurements and filed their respective reports in Court. The reports of the Land Registrar and surveyor were dated 5th February, 2023 and 19th January, 2026 respectively. They indicated that the plaintiff/respondent had since exceeded and/or extended to other areas he did not occupy before, when the Land Registrar Rachuonyo North/South and East together with the surveyor visited the suit land. 5. Despite the fact that the applicant raised issue over such unlawful act, the respondent had continued to forcefully acquire and occupy the same with an apparent impunity. The HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 3

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area Chief visited the suit land several times when notified of the respondent's acts and wrote letters about his findings. There was sufficient evidence to prove that the plaintiff/respondent had willfully disobeyed the court order. The court should not hesitate to punish the Respondent. The application herein was made in good faith and without malice. 6. The Application was supported by the Affidavit sworn by the Defendant/Applicant, James Ndege Okombo, on 8th June 2026. 7. He deponed that he was well versed with the facts of the matter. He repeated the contents of the grounds but in deposition form, and the court will take the same as such and not rehash them. But to the depositions he added that the suit land was bequeathed to him by his late mother, Silpa Orinda. He built a home on it in the year 2010. He annexed a copy of the title deed and marked it as "JNO-I". Before he moved and settled on the land he used to cultivate it each season as his only parcel of land. 8. The said land bordered parcel No. South Karachuonyo/Kamenya/1104 towards the north and South Karachuonyo[Kamenya/690 towards the south. Further, that HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 4

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land parcel No. South Karachuonyo/Kamenya/1104 was initially registered in the name of George Jonathan Kobe Onyango. They shared a common boundary together while land parcel no. South Karachuonyo/Kamenya/690 was registered in the name of Esther Nyachia Otula. There was a six (6) meter road which separated its boundary with the suit land parcel No. South Karachuonyo/Kamenya/723 9. His further deposition was that sometimes in the year (sic) the Plaintiff moved from his parent's home in land parcel No. South Karachuonyo/Kamenya/690 and erected a home on land parcel no. South Karachuonyo/Kamenya/1104. Further, that while the applicant was away working with the Kenya Telecommunications Corporation, he returned to his home, built on the suit land, No. South Karachuonyo/Kamenya/723, and found that there was an attempted interference with boundary features bordering land parcel No. South Karachuonyo/Kamenya/1104 in the year 2019. The applicant sought for the services of a Government Surveyor to help restore the damaged boundary fence. Consequently, the Surveyor issued notices to the owners of the bordering parcels HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 5

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of land and also to the Area Chief. It was through the notices that the Plaintiff learnt of the applicant’s intention. 10. He, the Respondent, approached the Oyugis Law courts vide a suit against the applicant to stop him (applicant) from the intended fencing and/or boundary restoration. The matter was heard and decided in the applicant’s favour. Thereafter, the Plaintiff immediately filed this suit, alleging that he had occupied my land for a long period of time and wanted to acquire it by way of adverse possession. 11. Further, knowing the allegation to be false, the plaintiff moved with speed and began to erect a semi-permanent structure inside the suit land parcel No. South Karachuonyo/Kamenya/723 and at the edge of the boundary bordering his home on the land parcel No. South Karachuonyo/Kamenya/1104. Then he sought the orders of maintaining status quo and on 4th February, 2020 they were granted. Thereafter, he began carrying out activities such as cutting down trees for charcoal burning, erecting of some other semi-permanent houses in the home of the second wife built on HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 6

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the applicant’s land, planting trees and excavation and harvesting of sand. 12. He deposed that the court order was well captured in the court record. He annexed and marked as 2B, 2C, 2D and 2E photographs of the activities. Further, during the pendency of the suit in Oyugis Senior Principal Magistrate's Court, the court issued an order directing the surveyor and Registrar to visit the suit land. They did so and filed their report in court on their findings. He annexed and marked as "JNO-3A & 3B", copies of the Surveyor’s and Registrar's reports. 13. He added that after the plaintiff filed this suit, the Court issued an order directing the Land Registrar, Rachuonyo North/East and South Sub Counties together with the Surveyor to visit the land, carry out measurements thereon and file their findings. The reports were prepared and filed. He annexed and marked as "JNO-4A & 4B" copies of the reports of the surveyor and the Land Registrar. 14. He deposed further that pursuant to a court order issued on the 11th November, 2024 the County Land Registrar and National Government Surveyor visited the suit land on the 8 th HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 7

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January 2026. They both made reports and filed them, and testified in Court. He annexed and marked as "JNO-5A & 5B" the Land Registrar and Surveyor's reports. 15. Further, that in the meanwhile the Plaintiff/Respondent was continuing to build more structures, cutting down trees for charcoal, planting to trees, excavating and harvesting sand. The applicant duly reported the said unlawful activities on the dates they were done, to the area Chief who would visit the suit land to confirm the same. In his letters, the Chief confirmed that he witnessed the acts of disobedience to the court order by the Plaintiff. he annexed and marked "JNO-6A & 6B" copies of the chief’s letters. 16. He deposed that he had watched in disbelief the way the plaintiff carries out the wanton activities on the suit land with an apparent impunity and with total disregard to the court order on maintenance of status quo. Further, that as a result, the applicant had suffered mental and psychological torture owing to the manner in which the plaintiff carries about the said activities with a lot of contempt in his (applicant’s) land. Further, he had suffered irreparable damage caused by the HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 8

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excavation of and sand harvesting. Thus, he had been compelled to file the instant application before the case becomes finally determined because those acts of disobedience should not go unpunished. He asked also that the court does strike out the suit or punish the plaintiff by committing him to a jail term for justice to prevail. 17. The respondent opposed the application through four grounds of opposition dated 22nd July 2026 which he filed on the same date. They were that the application was misconceived and unsustainable; it had misrepresented the real facts to the court; it was frivolous and an abuse of the process of the court; and it was misleading to the court. 18. He also filed a Replying Affidavit which he swore on 22 nd July 2026. In it he deposed that he had brought this suit against the Defendant. After full hearing it, was now scheduled for judgment on 1st October 2026. Further, the applicant had stated in his affidavit that he was the registered proprietor of land parcel number South Karachuonyo/Kamenya/723, a property he claimed to have been bequeathed by his late mother, Silpa Orinda. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 9

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19. The Respondent added depositions that he had canvassed by way of evidence and submissions all the issues raised by the defendant. 20. Further, that he added that he had been continuing to work on his side of the land his home was on and had not encroached on to the side occupied by applicant who also occupying the other side of the land. It was not true that he had moved to the applicant’s side of the land to do anything. That he had been carrying out all the activities referred to by the applicant on his side of the land, and they strictly complied with the orders of status quo as ordered on 4 th February 2020. 21. He deponed further that the lengthy issues in the detailed the Affidavit sworn by the applicant were matters subject to the main suit which had been canvassed, and the judgment thereto expected on 1st October 2026. Further, by bringing the application the applicant intended to preempt the judgment, and have him punished for on a non existent contempt of court before the court could give judgment on the primary facts. The defendant had brought this application at this stage in bad HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 10

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faith and with misleading averments designed to make the Court acts to his detriment. 22. The application was canvassed by way of written submissions, which only the applicant filed. The applicant’s written submission by giving the background of the application. This has been captured in the application itself and this court need not repeat the same here now. He then gave the particulars of disobedience the orders in issue by summarizing the same activities of building three houses, excavating, harvesting sand, cutting down trees and planting others on the disputed parcel of land. He added that the Respondent had extended the use of the land with a bid to acquire portions which were not used by him initially. He added that the when the land registrar and surveyor visited the area in 2022 they found that he occupied a smaller area than when the said officers visited the area and made a report on the 8/01/2026. Further, that the said extension was well illustrated in the sketch map/diagram drawn by the surveyors and which were annexed as JNO-3B & 4B. He added that the additional houses erected after the Order of the court were three in number as HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 11

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shown in annexture JNO-2P while the excavation and harvesting was shown by annextures -JNO-2E. He relied on the cases of NAIROBI VIII-IMANI HCCA NO.112 OF 2007, ISAAC MATHENGE vs. JOHN MUNYAO (sic); and KAKAMEGA HCCA NO. 20 OF 2021, ALFRED MANDILA & 2 OTHERS vs MOSES SWALI (sic). He prayed for the orders he sought. ISSUES, ANALYSIS AND DETERMINATION 23. This court has considered the application, the response thereto, the law and the submissions of the parties. I am of the view that only issues that lie before me for determination are, whether the application is merited, and who to bear the costs of the of the application. 24. Before proceeding with the application, it is with noting here that the failure of the Respondent to file his submissions does not prejudice him in the determination on merits of the instant application. The is because the failure itself did not preclude the court from considering the merits of the application. This is because submissions constitute neither pleadings nor evidence of parties. In other instances, sadly though. I have often noted HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 12

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that some courts dismiss parties’ cases or claims or allow the adverse parties’ prayers or reliefs for reason of that or the adverse party’s failing to file submissions. This also stretches into even cases where an application or even claim is filed but not responded to yet it is not automatic or obvious that such pleadings or clams or prayers are merited for want of challenge. This is a fallacy. In my considered humble view, every allegation ought to be weighed against or tested to the required standard of proof. Failure to submit only means that the court is not given; just as in this case wherein neither the grounds of opposition have been elaborated for the court to appreciate their relevance or import, or the highlight of the facts in the Relying Affidavit; the persuasive arguments or marketing content in the circumstances and that should not prejudice a party’s case. 25. In Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR) (17 March 2026) (Judgment), this court held, “The position of the law submissions neither constitute participating nor are they evidence they HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 13

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are only a language it is used to convince the court to then onto their proposed view in the dispute before the court. Simply put, … they are a marketing language of the parties.” 26. In Rowa & 2 others v K’Obil (Environment and Land Appeal E032 of 2024) [2026] KEELC 1708 (KLR) (18 March 2026) (Judgment), this court held, further that, “It is worth noting and repeating in this appeal just as in many other decisions this court has made that submissions do not constitute pleadings or evidence. This is because some of the arguments by the Respondent amounted to raising evidence.” 27. Also, in General v Ouma (Suing on behalf of Jesus cares Centre Ministry Intl of the Redeemed Gospel Church Inc) (Environment and Land Appeal E017 of 2023) [2025] KEELC 3231 (KLR) (7 April 2025) (Judgment), it was held, “Further to the above, parties cannot rely on submissions to do that which should have been done by pleadings and evidence, …” HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 14

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28. Put clearly, the Court of Appeal, in Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment), held: “Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 29. Therefore, this Court has the duty to consider the merits of the application irrespective of the failure by the Respondent to submit. This court will now proceed straightaway with the determination of the first issue. 30. The pertinent issue is whether the application is merited. The applicant contends that following the issuance of the order of 4th February 2020, granted at the behest of the Respondent vide his earlier formal application the applicant embarked on its disobedience by carrying out on the suit land a number of activities including building three houses thereon, excavating, HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 15

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harvesting sand, and cutting down trees while planting others. The Respondent, in his part, argues that he has obeyed the order of the court, and that the activities complained of he has carried them on his side of the land, and not the Applicant’s. 31. The law on contempt of court and the punishment that may be meted thereof in case a party is adjudged guilty is settled. As for this Court, under Section 29 of the Environment and Land Act, the court is empowered to punish any party who deliberately disobeys its order that he is aware of. The provision is that should be the court find that party guilty, it can impose a fine of a maximum of Kenya Shillings twenty (20) million and/ or sentence the contemnor to a prison term of a maximum of two (2) years or punish him by imposing both the fine and prison term. 32. The Judicature Act also, under Section 5, provides for the power of a court to punish any party for contempt of court. It is power donated to the court, including, the High Court, and by extension the courts of equal status. 33. Contempt of court has been defined variously. The learned author, Bryan Garner in Black’s Law Dictionary, 11th HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 16

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Edition, Thompson Reuters, 2019, p. 397, defines contempt as “…disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or impair the respect due to such a body”. 34. Many courts in Kenya have held severally so much about obedience of court orders. In Kenya Human Rights Commission v Attorney General & another [2018] eKLR the Court emphasized that: “Article 159 of the Constitution recognizes the judicial authority of courts and tribunals established under the Constitution. Courts and Tribunals exercise this authority on behalf of the people. The decisions courts make are for and on behalf of the people and for that reason, they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the judiciary which is HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 17

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vital for the preservation of our constitutional democracy. The judiciary acts only in accordance with the Constitution and the law (Article 160) and exercises its judicial authority through its judgments decrees orders and or directions to check government power, keep it within its constitutional stretch hold the legislature and executive to account thereby secure the rule of law, administration of justice and protection of human rights. For that reason, the authority of the courts and dignity of their processes are maintained when their court orders are obeyed and respected thus courts become effective in the discharge of their constitutional mandate.” 35. In Wamalwa v Ekirapa (Environment and Land Miscellaneous Application 2 of 2022) [2023] KEELC 16129 (KLR) (13 March 2023) (Ruling), this court held that; “It goes then that any party, whether served with a court order or not as long as it is directed to him or her, is bound to obey it provided that he has HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 18

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knowledge of the existence of the order. Court orders are not issued in vain: they must be obeyed, respected and/or fulfilled.” 36. And in South Africa, in Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another CCT 19/11(75/2015), Nkabinde, J observed that:“The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere in any matter, with the functioning of the courts. It follows from this that disobedience towards courts orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING orders or 19 decisions is

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substantially determined by the assurance that they will be enforced.” 37. In Canada, the Court was more emphatic on the issue when it rendered itself in Canadian Metal Co. Ltd v Canadian Broadcasting Corp(N0.2) [1975] 48 D.LR (30), where it stated that: “To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… if the remedies that the courts grant to correct… wrong can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.” Courts therefore punish for contempt to insulate its processes for purposes of compliance so that the rule of law and administration of justice are not undermined. Without this power or where it is limited HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 20

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or diminished, the court is left helpless and its decisions would mean nothing. This ultimately erodes public confidence in the courts; endangers the rule of law, administration of justice and more importantly, development of society. That is why the court stated in Carey v Laiken [2015] SCC 17 that; “Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect.”” 38. In the Kenya Human Rights Commission v Attorney General & Another High Court, Nairobi, Pet. 87 of 2017 [2018] eKLR, the court held, “It is therefore clear that the importance of the judiciary in the maintenance of constitutional democracy cannot be overemphasized. In order to achieve this constitutional mandate, the judiciary requires the power to enforce its decisions and punish those who disobey, disrespect or violate its HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 21

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processes otherwise courts will have no other means of ensuring that the public benefit from the judgments they hand down and the orders and or directions made on their behalf. When stripped of this power courts will be unable to guarantee compliance with their processes ineffective in and will the discharge certainly become of their duties and performance of their functions with the ultimate result that the public, as trustees of the rule of law, will be the major victim.” 39. This Court, in Wamalwa v Ekirapa (Environment and Land Miscellaneous Application 2 of 2022) [2022] KEELC 13267 (KLR) (5 October 2022) (Ruling) held that: “In order for one to be found guilty of the Contempt of Court, four (4) elements must be proved. There must have been: (a) a valid order of the Court. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 22

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(b) the order constructively must in have the been served knowledge of the or been alleged contemnor. (c) there must be an action or actions of a contemnor contrary to the order. (d) the actions of the contemnor in violation must be deliberate.” 40. Again, in Michael Sistu Mwaura Kamau v DPP & 4 others (2018) eKLR, the Court of Appeal stated as follows: “It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court in Republic v Ahmad Abolfathi Mohammed & another (supra). Secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in A.B. & another v R. B. [2016] eKLR, to sustain committal for contempt of HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 23

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court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v Baharini Farm (supra) and Republic v Ahmad Abolfathi Mohammed & another (supra)”. 41. Similarly, in Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR, emphasized as follows: “It is important, however, that the Court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the Court forbidding it… The threshold is quite high as it involves deprivation of a person’s liberty”. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 24 possible

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42. The court now sets to consider whether the four elements of contempt of court have been proven by the applicant. In the instant case, there was a court order which was issued on February 4th 2020 it was an order that the parties do maintain the status quo on land parcel number South Karachuonyo/Kamenya/723. The order at the center with the instant application was given pursuant to a Notice of Motion dated 16th October 2019, brought by the applicant. The Court at agreed with the Respondent that an order of maintenance of status quo be issued regarding the suit land. The Court decided to be very clear on what the specific status quo to be maintained on that parcel of land was and it made the following order which I quote verbatim: “By the consent of the parties, namely, the applicant represented by counsel, Mr. Mwita Kerario and the Respondent in person, the Notice of Motion 16 th October 2019 be and is hereby determined that: 1. there shall be status quo maintained in respect of LR. No. number South Karachuonyo/Kamenya/723 by both parties pending the hearing and determination of HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 25

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this suit commenced by way of Originating Summons dated 16th October 2019. In particular, a) The parties to observe the prevailing situation as the Defendants/ Respondent is and shall continue occupation possession of 3.2 hectares pending the hearing and determination of the present suit. b) The plaintiff permanent applicant house to use only the recently built on a semi portion measuring 5 meters into the suit land from LR. No. South Karachuonyo/Kamenya/1104 where the Plaintiff/Applicant stays pending the hearing and determination of this suit c) the parties shall not sell, dispose of, charge or further erect permanent structures on the disputed land pending the hearing and determination of this suit.” 43. It appears to me that the parties maintained the status quo for some time. I wonder what may have driven the Respondent to have moved with such great speed and to such a large extent to carry out the alleged activities complained of in this applicant. But my deduction which is not the basis of the HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 26

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decision in this application but a mere orbiter dictum is that one of them may have decided that having given evidence in court as to the position of the ground he had convinced it well enough about his claim and he did not need to wait for the judgment, or the matter had taken too long to be decided, or he had to act to preempt the decision of the court so that in case the matter was not in his favour and went on appeal he would be found to be in occupation of more portion and structures on the land and exploited resources therefrom. 44. Be that as it may, in the instant application, the applicant contends that contrary to the order of status quo that was issued on 4th February 2020, the plaintiff has proceeded to erect three (3) semi-permanent houses or structures on the parcel of land. He annexed as “JNO 2B, 2C, 2D & 2E” photographs of the said houses to evidence the Respondent’s alleged disobedience. He also deponed that the Respondent has continued to excavate the land and harvest sand therefrom. Further, that he has also cut down trees to burn charcoal while planting others. He annexed to the affidavit photographs of the alleged activity (part of the annextures JNO HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 27

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2B, 2C, 2D & 2E). He added that he reported to the area chief severally and the Chief had tried to have the Respondent stop whenever a report was made to him but in vain. He annexed, as JNO 6A and 6B, to the affidavit copies of two letters issued by the area chief. Now the applicant contends that those actions are contrary to the order of maintenance of status quo. 45. In answer to the application, the Respondent stated in his grounds of opposition dated 22 nd July 2026 that the application was misconceived and unsustainable, misrepresented the real facts, was frivolous and an abuse of the process of the court, and misleading to the court. He did not submit on them to point to the court how the application was contrary to all or one or the other of them. I have considered the application, even without that benefit and I find none of the elements or parts thereof meeting the criteria of any of the grounds. 46. Further, in his own affidavit sworn on 22 nd July 2026, the Respondent did not deny carrying out the activities alleged to have been carried out on the suit parcel of land. Instead, he introduced a different dimension or explanation for them that whatever the activities were, he had been carrying them out on HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 28

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his “side” of the land and not on “the side” that is occupied by the applicant. That was his deposition. Further, that therefore as for him he was in compliance with the order of status quo and should not be punished for contempt of court which did not exist. 47. With the above contention, the question that remains unanswered is, do the activities that have been acknowledged as having been conducted by the Respondent constitute contempt of Court or deliberate disobedience of the orders of this court or they do not? 48. As I have stated in paragraph 39 above, for one to successfully apply for a another to be punished for contempt of court the four elements of contempt of court must be proven. One is that there was a valid court order of the court. For the instant matter, and in answer to this element, indeed, there is no dispute between the two parties that there was a valid court order issued on 4th February 2020. 49. The second element to be proven is the order was clear and also actually was within the knowledge of the parties. On this, this Court has considered the circumstances of the instant HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 29

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case. It is clear to my mind that both parties are and were always aware that the order in issue was for the maintenance of the status quo on Karachuonyo/Kamenya/723 the until determined. The court even parcel the suit number is heard South and clarified that no buildings, charging, leasing, selling, among other activities were to be done, and the Respondent was to reside in only the house extended from the neighbouring parcel to parcel No. 723 by only five meters. That to me was clear that the status on the land was to be maintained. Furthermore, the order was to last the lifetime of the suit. This suit, and it is acknowledged by the Respondent, has not been concluded. It is pending judgment, which was to be today but for this application. Thus, is the suit determined? The answer to that depends on the court record, which I have summarized above. According to the respondent, he contends that the issues raised by the applicant in this application were heard and canvassed both by way of evidence and written submissions, in the main suit which is pending for judgment on 1st October 2026. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 30

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50. Bearing in mind that this application was brought in July 2026 and the acts complained of were acts conducted or carried out prior to the delivery of the judgment then, indeed, this suit has not been heard and determined. For that reason, the order of status quo holds fast still and until the suit is heard and determined. It therefore also follows that any act or conduct that would be contrary to the orders of status quo before the determination of this suit would amount to contempt of court if the other elements obtain. 51. I therefore now consider whether the other the other elements of contempt obtain in this matter. The other the other element is whether the actions of the alleged contempt were deliberate or willful. In order for one to be considered to have deliberately acted deliberately or willfully it must be borne in mind that the person ought to have been in control of the processes (of the mind) that have led to the actions or omissions which are deemed to be contrary to the order of the court. In the instant case, it is not denied by the Respondent that he has been building on the parcel of land. Actually, he says by an indirect admission in deposition that he has been HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 31

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doing those acts, including, building houses, excavating and harvesting sand, and even cutting down trees and planting others on his side of the land. Thus, it means basically that he has actually been deliberately doing the acts. It was not out of compulsion or coercion, lack of knowledge of them being among those prohibited by the court or through other means which he was not in control of. Therefore, he knew what he was doing and proceeded to do them. 52. The contention he brings up in relation to this element, and which remains for determination is that the actions were not on the side of the suit land occupied by the Respondent. That raises only one question: do the actions of the applicant relate to the parcel of land in issue? To arrive at the just conclusion, this court has to revisit the contents of the order of status quo. They were, at the relevant part, that the Respondent was to continue occupation possession of 3.2 hectares pending the hearing and determination of the present suit, and the plaintiff was to use only the semi permanent house recently built on a portion measuring 5 meters into the suit land from LR. No. South Karachuonyo/Kamenya/1104. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 32

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53. Indeed, it has been sworn by the applicant, and it is not in dispute, that the Respondent’s actions were carried out on land parcel number South Karachuonyo/Kamenya/723. The only difference which the Respondent wants to raise, as I have said above, is to bring about idea that the activities are being carried out on his side of the land and not on the applicant’s side. Specifically, he depones at paragraph 8 of his Replying Affidavit that, “all these activities I have been carrying out on my side of the land…” That calls for a further examination of the order of status quo was issued on February 4 th 2020, with the hindsight question: Did the court state that other acts including or such as those the Respondent has been carried out, for instance, erecting semi permanent houses could be carried out on the parcel of land where he was in occupation? 54. I have considered the order of 4 th February 2020 once more. The order was very clear that the respondent was only to occupy or use the house that was built on the stretch which was only 5 meters into land parcel number South Karachuonyo/ Kamenya/723, from parcel No. South Karachuonyo/Kamenya/1104. It was clear that he was not to HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 33

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construct any houses or any structures on the parcel of land, and not only him but even the applicant. So the order did not ‘separate’ or partition the use of the land or divide the land by a way of occupation and permit anyone to do or carry out acts which were contrary to it (order of status quo) on that parcel of land irrespective of who was occupying it. It was the was clear that none of those activities were supposed to be done on the land. In any event I have carefully examined the Report by the surveyor and the land registrar as made on 26 th January 2026, being annextures, JNO 5A and 5B. They are clear that the Respondent has exceeded the occupation of the land he was permitted to occupy when the order was granted, and which was captured under the report made earlier by the surveyor and land registrar, being, annextures JNO 4A and 4B. 55. Therefore, it means that any acts committed by the Respondent as has been alluded to by the applicant and which have not been denied by the respondent himself have been not only deliberate but committed on the suit land, and contrary to the order of this Court. I therefore find that the Respondent has actually committed and continues to be contempt of court by HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 34

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deliberately proceeding with all those acts. I find him guilty and convict him accordingly. 56. Having convicted him, I now, bearing in mind that justice and mercy go together, proceed to give him a chance to purge the contempt so much so that if he purges it, the Court may, peradventure, punish him less severely or even forgive him completely when he comes before it to mitigate. 57. In order to give him chance to purge the content this Court directs the contemnor to, within the next thirteen (13) days, carry out the following activities on the suit land: 1. The contemnor/ Respondent shall forthwith demolish all the structures and or houses he has erected on that suit land after, and contrary to, the order of status quo granted, and ensure that the ground thereof is levelled and brought to as near state as it was before they were erected. 2. The contemnor is directed to stop forthwith all the sand harvesting and excavating, and or any related activity as such he has conducted on that parcel of land contrary to the court order. HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 35

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3. The contemnor is required to levelized and or restore the place he has been harvesting sand and excavating from to as nearly possible as its original state it was before the activities that were contrary to the orders 4 th February 2020 were conducted. 4. The area Chief and Assistant Chief of the location and sublocation of the area the suit land is situate to visit the land on the 12th or 13th day from today and make a Report on the compliance or otherwise of the above directions and file it before the court by the morning of 15 th October 2026 at 08:30 AM. These directions be given to the Chief and Area Assistant Chief by the Applicant. 5. The applicant and/ or both the Applicant and the contemnor are to immediately contact the Forest Officer of the area to visit the land, at the cost of the contemnor, and if the contemnor shall not pay the cost the visit, it be paid by the applicant, but it be refunded by the contemnor at the right time, in order for the to assess value of damage caused by the cutting down of the trees or harvested ones and those planted, and a report be filed in a court forthwith, and await HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 36

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further directions on the next step with regard to it being deposited in Court, and while awaiting the delivery of the judgment compensation for the destruction and damage that has been done contrary to the court order 6. This matter shall be mentioned on 15 th October 2026 when the Contemnor is required to attend court personally and confirm that he should have carried out the thick activities directed to two 7. Meanwhile the contemnor shall be released on a personal bond to be executed today in the sum of Kenyan Shillings 1 500,000/= and which shall remain in force until the final sentence of this court is handed down. In default of the execution, the contemnor be remanded in police custody at Homabay Police Station or the Homabay GK Prison until he executes the bond or is produced in court. 58. Order accordingly. Ruling dated, signed and delivered virtually (but hybrid as noted below) via the Teams Platform this 1 st day of October, 2026. Hon. Dr. iur Nyagaka- Judge HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 37

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From 11: 29 AM, in the presence of, 1. C. Kanyangi for the Plaintiff/Respondent (online) 2. Respondent, present in open Court 3. Defendant/ Applicant, present in open court HOMA BAY ELC CASE NO 21 OF 2021 (OS) D.O.D 1.10.2026 -RULING 38

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