Jkn v Jnk

neglected to deposit the rental proceeds into Court, thereby unlawfully appropriating the rental income to his detriment. 5. In opposition, the Respondent filed a Replying Affidavit dated 30 January 2026 and a Further Affidavit dated 10 March 2026. She avers that the initial failure to open the joint account at Equity Bank was occasioned by registration discrepancies concerning the Applicant's Advocate's firm (a mismatch between the Business Registration System records and the Advocate's National Identity Card), an anomaly formally fiagged by the bank. 6. Regarding the alternative directive to deposit the funds into Court, the Respondent asserts that the delay was not mala fide. She states that ascertaining the maintenance costs deductible from the gross rent proved ambiguous and challenging, necessitating the engagement of an accountant to prepare an accurate Statement of Accounts. The accountant's report determined the average net monthly rental income to be KES 197,952/=. 7. Demonstrating her willingness to comply, the Respondent subsequently deposited the accumulated sums for November 2025, December 2025, January 2026, and February 2026 directly into the Court's account. Her Advocates have continually corresponded with the Deputy Registrar seeking Payment Reference Numbers (PRNs) to ensure the continuous deposit of subsequent rents from March to June 2026. Analysis & Determination 8. The power to punish for contempt of court is vested in this Court under Section 5(1) of the Judicature Act (Cap 8). This power is fundamental in upholding the dignity, authority, and effectiveness of the judicial process. As the Court of Appeal aptly noted in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), Courts cannot fold their hands in helplessness and watch as their orders are disobeyed with impunity, lest the society descends into anarchy. 9. The elements required to establish civil contempt were succinctly outlined in Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] KEHC 9233 (KLR). An applicant must prove: (i) The terms of the order were clear, unambiguous, and binding; (ii) The contemnor had knowledge of the terms; (iii) The contemnor breached the terms; (iv) The contemnor's conduct was deliberate. 10. Furthermore, I am guided by the persuasive holding in Katsuri Limited v. Kapurchand Depar Shah [2016] eKLR, where the Court affirmed that to commit a person for contempt, the court must be satisfied that the disobedience was deliberate and wilful. 11. Because contempt proceedings are quasi-criminal in nature and involve the deprivation of liberty, the standard of proof is higher than a mere balance of probabilities; it must be proved almost beyond a reasonable doubt, a principle deeply entrenched since Mutitika v Baharini Farm Limited [1985] KLR 229. 12. Applying these principles to the instant case, the validity and knowledge of the Orders dated 7 August 2024 and 8 October 2025 are not in dispute. What is in contention here is whether the Respondent's failure to comply within the specific timelines was wilful, deliberate, and contumacious. 13. On the failure to open the joint bank account, documentary evidence reveals that the process was initiated at Equity Bank but stalled due to a discrepancy on the Applicant's Advocate's Certificate of Registration, a matter outside the Respondent's control. While the Applicant's Advocates later suggested moving to Bank of Africa, the initial administrative failure cannot be laid squarely at the feet of the Respondent. I find no proof of deliberate sabotage by the Respondent in this specific regard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11871/eng@2026-07-30 2

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14. Turning to the Order dated 8 October 2025, the Respondent was unequivocally directed to deposit the monies into Court if the joint account was not opened within 30 days. The Respondent admits to missing this deadline, which lapsed on 11 November 2025. 14. However, the law of contempt distinguishes between a mere failure to comply and contumacious defiance. The Respondent has provided a plausible explanation that she needed to ascertain the exact quantum of the deductible maintenance costs to ensure strict numerical compliance with the Order. 15. The primary objective of civil contempt proceedings is coercive rather than punitive—it is designed to compel compliance. The Respondent has produced official Court Receipts demonstrating that she has since deposited KES 197,952/= per month for the period between November 2025 and February 2026. Furthermore, a perusal of the Court Tracking System (CTS) reveals that the Respondent’s legal counsel has consistently applied for PRNs to deposit the subsequent rental proceeds up to June 2026, which sums have been received by the Court. By undertaking these actions, the Respondent has effectively purged her contempt. 16. Having found that the Respondent has purged her contempt by actively depositing the required funds into the Court's account, an order committing her to civil jail or imposing a fine would be vindictive rather than coercive. Therefore, the substantive prayers for committal and fines fail. 17. In the upshot, I make the following orders: i. The Notice of Motion dated 16 December 2025 is hereby dismissed as the Respondent has purged her contempt by complying with the alternative directive to deposit the funds into Court. ii. The Respondent shall continue to deposit the undisputed net rental income into the Court's account by the 10th day of every subsequent month pending the hearing and determination of the main suit. iii. The Applicant shall bear the costs of this Application. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF July 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: Applicant: Ms Waweru h/b Mrs Maina Respondent: Ms Nyongesa Interested Party: Kimaiti Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11871/eng@2026-07-30 3

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