Kimani v Langat

judgment, he led the aforesaid appeal and an application for stay of execution, which was dismissed on 27th January, 2026. 6. The respondent, however, denies being in possession, custody or control of the subject motor vehicle. He depones that the motor vehicle was reportedly stolen and that the matter was reported to the police and recorded in the Occurrence Book. He further states that the motor vehicle was stolen by Elijah Kiplagat Murkomen and that the applicant subsequently instituted Small Claims Case No. E324 of 2025 against the said Elijah Kiplagat Murkomen, in which judgment was delivered on 25th July, 2025. 7. The respondent maintains that he has never seized, detained or retained the motor vehicle and is therefore unable to release it to the applicant. He further contends that the applicant is aware that the motor vehicle is in police custody and not in his possession. He asserts that he holds the authority of the Court in the highest regard and has no intention whatsoever of disobeying its lawful orders. His position is that a party cannot be punished for contempt for failing to perform an act which is impossible to perform. He consequently prays that the application be dismissed. 8. The applicant led a Further Adavit sworn on 13th March, 2026. He deposes that the question as to whether the motor vehicle was in the respondent’s custody had already been determined by the Court with nality and that the respondent cannot seek to review that determination through his Grounds of Opposition and Replying Adavit. 9. He further states that the respondent was the last person in custody of the motor vehicle and is therefore the only person who knows its whereabouts and how to deliver it. He contends that the motor vehicle was released to the respondent by the police after it had allegedly been seized by Elijah Kiplagat Murkomen, and that this was the reason he instituted proceedings against the Respondent. 10. The application was canvassed by way of written submissions. I have considered the Notice of Motion, the Grounds of Opposition, the Replying Adavit, the Further Adavit and the submissions led. The issue for determination is whether the respondent is in contempt of the orders of this Court and ought to be punished accordingly. 11. It is not disputed that judgment was delivered on 24th October, 2025 in favour of the applicant against the respondent, directing the respondent to return motor vehicle registration number KMFL 494D to the Applicant within seven (7) days from the date of judgment. It is also not disputed that the order has not been complied with. The respondent led an appeal and an application for stay of execution before the High Court. The application for stay was dismissed and there is presently no order staying execution of the decree. 12. The applicant has therefore moved this Court for contempt on the basis that the respondent has failed to comply with the order requiring him to return the motor vehicle. The respondent’s answer, however, is that he cannot comply with the order because the motor vehicle is not and has never been in his possession, custody or control. 13. I have considered the documentary evidence placed before the Court. The Occurrence Book extract conrms that a report was made concerning the theft of motor vehicle registration number KMFL 494D and that the alleged theft was attributed to Elijah Kiplagat Murkomen. The photograph produced further indicate that the motor vehicle has been at Kapsowar Police Station since 2nd April, 2025. I have also considered the documents relating to Small Claims Case No. E324 of 2025, instituted by the applicant against Elijah Kiplagat Murkomen. Judgment in that matter was delivered on 25th July, 2025, in favour of the applicant, with an order that the motor vehicle registration number KMFL 494D be handed over to the applicant within three (3) days, together with payment of Kshs. 60,000, https://new.kenyalaw.org/akn/ke/judgment/scc/2026/246/eng@2026-09-25 2

page 2 of 4

costs and interest. The applicant avers that the motor cycle was released to the respondent that is why he led the present case. 14. The respondent’s position is that he has never been in possession or custody of the motor vehicle. The applicant, on the other hand, maintains that the respondent was the last person in possession of the motor vehicle and that it was subsequently released to him by the police. 15. The applicable principles governing civil contempt are well settled. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court identied the matters that an applicant must establish in contempt proceedings, including the terms of the order, knowledge of those terms by the alleged contemnor and failure to comply with the order. 16. Contempt of court is conduct or action that dees or disrespects the authority of the Court. Black’s Law Dictionary, 9th Edition, denes contempt as conduct that dees the authority or dignity of a court or legislature and which interferes with the administration of justice. The purpose of punishing for contempt is, among other things, to uphold the dignity and authority of the Court, ensure compliance with its orders and directions, preserve respect for due process and maintain public condence in the administration of justice. A party may therefore be cited for contempt where there is established disobedience of an order directed at him. 17. In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828, Ibrahim, J. (as he then was), underscored the importance of obedience to court orders and stated that it is the plain and unqualied obligation of every person against whom an order is made by a court of competent jurisdiction to obey it unless and until the order is discharged. 18. At the same time, contempt proceedings are quasi-criminal in nature and the standard of proof required is higher than proof on a balance of probabilities. The applicant must establish wilful and deliberate disobedience of the court order. In Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, the Court stated that contempt of court is an oence of a criminal character and that the alleged contempt must be proved satisfactorily. The Court further observed that the standard of proof should be higher than on a balance of probabilities, though not exactly beyond reasonable doubt, and that the gravity of the alleged contempt must be taken into account. 19. In the present matter, the respondent does not dispute knowledge of the judgment or the order requiring him to return the motor vehicle. Indeed, he exercised his right to appeal and sought a stay of execution, which application was unsuccessful. Knowledge of the order is therefore not in issue. The question that remains is whether the respondent deliberately and willfully disobeyed the order by failing to return the motor vehicle. 20. Contempt proceedings require proof of willful and deliberate disobedience. It would, in my view, be unjust to punish a person for failure to perform an act which, on the evidence before the Court, he has demonstrated he is factually unable to perform. Having considered the material before me, I have not seen sucient evidence demonstrating that the motor vehicle was released to the respondent or that, at the material time, the respondent had possession, custody or control of it. In particular, no evidence has been placed before the Court establishing the circumstances under which the motor vehicle was allegedly released to the Respondent. 21. I also take cognisance of the fact that there is a pending appeal before the High Court. Although the application for stay of execution was dismissed, the substantive appeal remains undetermined. The existence of the pending appeal does not, in itself, suspend the operation of this Court’s order. However, in the circumstances of this case, it is relevant to the overall exercise of the Court’s discretion, https://new.kenyalaw.org/akn/ke/judgment/scc/2026/246/eng@2026-09-25 3

page 3 of 4

particularly where the evidence does not satisfactorily establish that the respondent has possession or control of the subject motor vehicle. 22. The power to punish for contempt is a discretionary power which must be exercised cautiously and sparingly. In Carey v Laiken, 2015 SCC 17 (16th April 2015), the Court emphasized the need for restraint in the exercise of the contempt jurisdiction, noting that the contempt power is an enforcement power of last resort. 23. In the circumstances of this case, and having considered the material placed before the Court, I am not satised that the applicant has proved, to the requisite standard, that the respondent wilfully and deliberately disobeyed the order of the Court. 24. Consequently, the Notice of Motion dated 25th February, 2026 is hereby dismissed. 25. Each party shall bear their own costs. RULING SIGNED, DATED AND DELIVERED ELECTRONICALLY AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M.E ALIGULA- RM. In the presence of C/A Mr. Lepatoiye. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/246/eng@2026-09-25 4

page 4 of 4