https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3975

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC APPEAL CASE NO. E007 OF 2026** **ALBERT KINYANJUI ALUGAYA------------APPELLANT/APPLICANT** **VERSUS** **JAMES LUSWETI-------------------------------------------1ST RESPONDENT** **PETER LUSWETI------------------------------------------2ND RESPONDENT** **RULING** 1. Contempt of court orders issued on **9/4/2026** is what the appellant, by an application dated **21/4/2026**, is asking the court to find against the 2nd respondent. The grounds are set out on the face of the application and in a supporting and supplementary affidavit sworn on **22/4/2025** by Albert Kinyanji Alugaya and George Mulali. 2. It is deposed that orders of status quo which were issued on **9/4/2026** were served upon the 2nd respondent together with the application dated **9/4/2026**, who acknowledged receipt of the same by signing a copy and dating it as per annexure marked **AKA-(1),** and the affidavit of service marked **AKA-(2).** The applicant avers that he also witnessed service of the same, though at a distance. 3. The applicant deposes that on **11/4/2026**, at around **5:00 a.m.**, the 2nd respondent accompanied by goons and, in total disregard of the court order, demolished all the fence to the plot in dispute and completely sealed off the area behind to an extent that he and his tenants cannot access the plot from behind, as per the photos attached as annexure marked **AKA-(3).** 4. The applicant deposes that the 2nd respondent used iron sheets and has gone ahead to write “no trase pass”, which means no trespass, and on the other side, “not for sale”, as per annexures marked **AKA-4(a)** and **(b).** 5. The applicant deposes that he and his tenants are effectively blocked from accessing the suit property, in total breach of the court order. The applicant deposes that the 2nd respondent did not follow due process before taking the property, as he had not assessed costs or sought leave of court to execute the decree before assessing costs by dint **of Section 94** of the Civil Procedure Act, yet they had paid him rent as per annexure marked **AKA-5(a)** and **(b).** 6. In the supplementary affidavit, the process server says that after receiving the application, and the court order from the applicant’s advocate on record on **10/4/2026**, he affected service on the same day at around **10:05 a.m.** upon the 2nd respondent, as per affidavit marked **GM-1(a)** and **(2),** who told him that the order would not stop him from doing what he had planned to accomplish. 7. The application is opposed through a replying affidavit of Peter Lusweti, sworn on **28/4/2026**. 8. The court, on **9/4/2026,** issued an order of status quo as at the delivery of the lower court judgment, be maintained with no interference with the existing tenancy arrangements or disturbance of the substratum of the appeal until the hearing date of **23/4/2026**. 9. The judgment of the lower court declared the 2nd respondent the legitimate owner of title No. **Trans Nzoia/Kwanza/116**, and declared null and void and due for cancellation the certificate of lease issued thereto in favour of the appellant on **5/2/2020**. 10. In the replying affidavit to this application and the application for stay, the 2nd respondent has not indicated whether he extracted and served any decree pursuant to the judgment before he attempted to take over the suit premises. 11. Contempt of court is governed by **Section 5** of the Judicature Act, **Section 63** of the Civil Procedure Act, **Section 29** of the Environment and Land Court Act, and **Order 40** of the Civil Procedure Act. 12. To succeed in such an application, it must be on a balance higher than in ordinary suits, as held in ***Mutitika -vs- Baharini Farm Ltd [1985] KLR 229***, prove: ***(a)*** *Existence of the order.* ***(b)*** *Identify the address of the order.* ***(c)*** *Knowledge of the order.* ***(d)****Willful and deliberate breach of the same.* See***Kenya National Union of Teachers & 2 others -vs- Teachers Service Commission [2018] eKLR.*** 1. It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court to obey it, unless and until that order is varied, set aside, or discharged, whether null or valid, regular or irregular, as held in ***Hadkinson -vs- Hadkinson [1952] ALLER 567***. 2. In ***Kimani Gachuhi & Another -vs- Evangelical Mission for Africa & Another, Nairobi, Civil Appl. No. 140 of 2015***, the court cited ***Shimmers Plaza Ltd -vs- National Bank of Kenya Ltd [2015] eKLR***, where the court said: *“Status quo in normal English parlance means the present situation, the way things stand as at the time the order is made, the existing state of things. It cannot, therefore, relate to the past or future occurrences or events. We fail to see what can be ambiguous about that order. All it meant was that everything was to remain as it was at the time the order was given. If there were any transactions of whatever nature that were going on in respect of the land in question, they had to freeze and await the discharging of the court order.”* 1. It is not disputed that at the time of delivery of the judgment of the lower court, the appellant was the one occupying the suit property. That is why he rushed to this court for stay orders. As indicated above, there is no evidence that the execution had taken place by the time the 2nd respondent was served with the court order on **10/4/2026** at **10:05 a.m**. I am satisfied with the affidavit of service. The 2nd respondent was given a chance to cross-examine the process server at the hearing of this application, or the applicant, who witnessed the service being effected. Therefore, service and knowledge of the contents or otherwise of the order are not disputed. 2. The next issue is whether there was a breach of the order and, if so, whether it was willful and deliberate. Compliance with court orders is a fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and the supremacy of the Constitution are fundamental values of our society. Judicial authority is vested in the judiciary to be exercised on behalf of the people, to resolve disputes. 3. Contempt is a disregard of or disobedience to court orders. It is essential for the maintenance of the rule of law and order that the authority and the dignity of the court be upheld at all times. Courts do not condone deliberate disobedience of their orders and will not shy away from their responsibility to deal firmly with proven contemnors, as held in ***Econet Wireless (K) Ltd -vs- Minister for Information and Communication of Kenya & Another [2005] KLR 828***. 4. A party that knows of an order cannot be permitted to disobey it. In this case, the 2nd respondent knew that he had not issued an eviction notice to the appellant by dint of **Section 152A-I** of the Land Act. He also knew he did not have a decree of the court. 5. Similarly, he knew there was a pending appeal, an application, and an order stopping any interference with the tenants. The fencing of the suit premises and the putting up of notices show that he knew what he was doing. His conduct, by words and deeds, shows that he ignored the court order and was ready for the consequences. 6. The court finds the 2nd respondent guilty of contempt of court and places the 2nd respondent on mitigation before sentencing. 7. In the 2nd application dated **6/5/2026**, the appellant urges the court to issue an injunction barring and restraining the 2nd respondent to the appeal and the contemnor from using the police to harass him, the process server, and his advocates on record on allegations of forging or using a fake order claiming service was effected on **10/4/2026**, yet he was served on **13/4/2026**. The application is supported by an affidavit sworn on **6/5/2026** by Albert Kinyanji Aluyaga. 8. The applicant deposes that on **4/5/2026**, the process server was summoned by the SCCIO Kwanza to attend at their offices on **5/5/2026**, in relation to the complaint on forgery lodged by the 2nd respondent concerning service of the court order, the subject matter of the application for contempt of court before this court as per annexures marked **AKA-(1)** and **(2).** The applicant terms the said complaint and the attendant alleged investigations at the instigation of the citee as aimed at intimidating him and an abuse of the court process. 9. The 2nd respondent deposes that on more than six occasions, the process server has admitted during a telephone conversation that he served him with the order on **13/4/2026** as per the attached transcript of the conversation marked **PR-(1)**, and therefore is unable to clarify how his signature was appended to the summons and indicated that he served him on **10/4/2026**. 10. Further, the 2nd respondent deposes that this application by the appellant is seeking to defend forged documents, with the intention to mislead the court, whose inference is that the appellant is colluding to have him cited for contempt of court, as he continues to illegally occupy his property for the last **7 years**. 11. The 2nd respondent deposes that the collusion between the two is intended to defeat justice, which should not be limited or defeated under any circumstances, as guaranteed by the Constitution. 12. The 2nd respondent deposes that there is a need, as advised by his lawyer, to expose an injustice and perjury which overrides any right to privacy in line with **Article 50(4)** of the Constitution. 13. The 2nd respondent deposes that the allegations by the appellant that he forced the process server to admit that he served him on **13/4/2026** are not only desperate and laughable, since their conversation in the transcript begins with greetings and ends with an express readiness to testify before the court that he served him on **13/4/2026**. 14. The 2nd respondent deposes that he does not understand why the process server swore two affidavits of service raising different allegations against him. The 2nd respondent deposes that he is willing to remove the fence, which he has done in good faith, only so that the matter moves forward, as the court focuses on the real issues that the appellant has no arguable appeal and has also not met the conditions of stay. 15. The 2nd respondent deposes that forgery, false swearing, and perjury are criminal offences squarely within the mandate of the police. The 2nd respondent reiterates that he has not committed any contempt before the court, as can be seen from the foregoing, and that he is a law-abiding citizen. 16. Again, the 2nd respondent deposes that he has endured significant mental distress and psychological trauma as a result of frivolous applications by the appellant, while his right to property continues to be infringed due to the orders of status quo obtained through forged documents. 17. The application is opposed through a replying affidavit sworn by Peter Lusweti on **7/5/2026**. 18. In the 3rd application dated **7/5/2026**, the 2nd respondent urges the court to stay, set aside, and discharge the proceedings for contempt of court initiated by the appellant through the 1st application herein. The reasons are contained on the face of the application and in a supporting affidavit sworn by Peter Lusweti on **7/5/2026**. It is deposed that after the court session of **30/4/2026**, he called the process server and asked him why he swore an affidavit indicating that he served him on **10/4/2026**, and yet he did so on **13/4/2026**. He attached a copy of the audio conversation on a flash disk as annexure **PLM-(1),** only for him to respond in Kiswahili that he officially served him on the **13th**. 19. The 2nd respondent deposes that he also asked him why his signature was appended to the document and dated **10/4/2026**, and he responded in his mother tongue that they both knew that service was effected on the 13th. The 2nd respondent deposes that his phone usually records telephone conversations, which allowed him to keep the recording of their conversation. 20. The 2nd respondent deposes that he then proceeded to Kwanza Police Station to report the process server for forgery, since he could not explain how his signature was appended to the document dated **10/4/2026**. The 2nd respondent maintains that the said signature is a scanned copy of his original signature, which was attached to a new document dated **10/4/2026**, with other details, including the time of service as **10.05 hours**, having been copied and pasted, yet the actual date and service were **13/4/2026**, which were deliberately deleted. 21. The 2nd respondent deposes that after service on **13/4/2026**, at **1007 hours**, he took a picture of the court order as per a screenshot indicating time and date attached as **PLM-(2),** making the false swearing by the process server a criminal offense. 22. Further, the 2nd respondent admits that the process server was summoned to the police on **4/5/2026** and appeared with his advocate, then sought more time before he could record a statement as per the summons attached as **PLM-(3)**. The 2nd respondent deposes that on **7/5/2026**, the process server recorded a statement with the Directorate of Criminal Investigations (DCI), reiterating the contents of his two affidavits, as per annexure marked **PLM-(4),** where the process server admitted that he had called him and consented to the date of service as **13/4/2026**. 23. The 2nd respondent deposes that even a blind person can see the lies being stated by the process server, who is an officer of the court, owing a duty not to lie but is doing so in collusion with the appellant, to have him wrongfully and illegally cited for contempt of court, which he did not commit. 24. Again, the 2nd respondent deposes that he did not request the process server to change his affidavit on the date of service, but his police statement was purely a reflection of what happened, only for the two to collude to lie to the court to defeat justice on his part. The 2nd respondent deposes that both the appellant and the process server have his WhatsApp number, and it would have been easier to use it to serve him and keep an accurate record of service. 25. The 3rd application is opposed by the appellant through a replying affidavit sworn on **13/5/2026**. The appellant deposes that the affidavit is defective in form, as to the place of signature and commissioning. The appellant deposes that on **23/4/2026**, the 2nd respondent was in court when the application for contempt came up for hearing, admitted the date of service with the order and its disobedience, while the process server was also in court for cross-examination, but his lawyer on record opted to ask for time to purge the contempt, which the court gave and listed the matter for a further date on **28/4/2026,** to confirm the purge of the contempt. 26. The appellant deposes that when the matter came up on **28/4/2026**, the 2nd respondent had purged the contempt partly but not fully, and through his advocates on record, he asked to be given up to **2:00 p.m.** on the same day to comply fully, which the court acceded to. 27. The appellant deposes that when the matter was called out at **3:00 p.m.**, instead of the 2nd respondent coming to court to confirm what he had done, he filed a replying affidavit opposing the application for contempt and failed to appear in court. 28. The appellant deposes that in the replying affidavit, the 2nd respondent does not denies service, but that after **2/4/2026**, he started claiming that he was never served, making the 3rd application an afterthought and a means of using the police to prosecute the process server. 29. The appellant deposes that, looking at the process server’s witness statement at the DCI, he indicates that the date of service of the order was on **10/4/2026**, and it is only the 2nd respondent who had remained with a copy and changed it. 30. The appellant deposes that had the 2nd respondent not been served, he could have taken the first opportunity to inform the court about it when he first appeared in court. The appellant deposes that the 2nd respondent has been using the police to intimidate the process server to yield to his allegations of service, yet a Closed-Circuit Television (CCTV) on the site confirms the date of service. 31. The appellant states that the 2nd respondent cannot issue a certificate of electronic evidence on his own accord, without a translation and a certificate of translation issued to confirm that the person translating the same is conversant with the language, and a certificate issued. 32. The court record shows that on **23/4/2026**, when the application for contempt came up, Mrs. Munialo, for the appellant, told the court that she had discussed the matter with Mr. Munialo advocate for the 2nd respondent and agreed to withdraw the application subject to the 2nd respondent, who was also present before the court purging the contempt by removing the fence erected on the suit premises and hence requested for **7 days** to confirm progress in default, to argue the application. 33. Mr. Munialo, for the 2nd respondent, confirmed the same, and by consent, the parties agreed that the 2nd respondent was to purge the contempt within **7 days**; in default, to come before the court and argue the application on **28/4/2026**. 34. When the parties appeared in court on **28/4/2026**, both the appellant and the 2nd respondent and their lawyers were present. The parties were given up to **3:00 p.m.** to confirm progress. At **3:00 p.m.**, the 2nd respondent and his lawyers were not personally present before the court. Mrs. Munialo, for the appellant, argued the application, since the 2nd respondent was not in court to confirm any progress, but instead had, during the break, filed a replying affidavit. 35. Learned counsel therefore argued the application and urged the court to find it merited. Learned counsel with regard to the replying affidavit, insisted that had been effected service belongs to the 2nd respondent. Learned counsel submitted that evidence that the appellant was selling the suit premises to a third party, as alleged, was missing. Before the court could rise, Mr. Munialo, for the applicant, stepped in and confirmed that his client was absent. 36. Learned counsel told the court that he was relying on the replying affidavit sworn on **28/4/2026**. Learned counsel did not insist on cross-examining the process server before the court or did not bring it to the attention of the court that there was an alleged forgery of a date or perjury. Learned counsel did not mention any new developments as regards the date of service of the order or submit on the same. 37. The court proceeded to give a ruling date of **13/5/2026** and directed that the 2nd respondent to appear in person. In the intervening period, the 2nd and 3rd applications were filed by the appellant and the 2nd respondent, which precipitated the be stayed of the ruling, as per directions given during the morning call over. 38. The court also gave directions that the two applications be heard first. When the court resumed at **1:45 p.m**, there was no appearance of the 2nd respondent or his advocate to argue his application, as well as the appellant. A civil warrant of arrest were issued because the ruling could not be read in the absence of the 2nd respondent. It had to be postponed to **14/5/2026**. 39. On **14/5/2026**, the court directed that the two applications be heard first, following a request by the 2nd respondent’s counsel, Mr. Munialo, who proceeded to argue the 3rd application. 40. Learned counsel urged the court to find on the flash disk that there was an admission by the process server on the actual date of service of the order, making his earlier affidavits false. 41. Mr. Munialo submitted that at the time the order was served, his client had already put up the disputed fence and taken measurements; however, evidence of his compliance was not produced on the strength of the lower court judgment. 42. Learned counsel, Miss Munialo, opposed the application. As to service of the order, she submitted that the same was done on **10/4/2026** and that on **23/4/2026,** the 2nd respondent and his lawyers appeared in court, making an admission of disobedience of the order, whereafter they asked for more time but failed to attend court at **3:00 p.m.** on **28/4/2026**, up to which time service of the order was not contested. Learned counsel submitted that there was a problem with the alleged translation, which showed no phone numbers or the time of the conversation. 43. Learned counsel Mr. Munialo, in a rejoinder, urged that the court find such defects curable under **Article 159** of the Constitution. 44. Learned counsel, Miss. Munialo proceeded to argue the 2nd application and added that the police had also come to her office courtesy of the 2nd respondent. 45. In opposing the 2nd application, Mr. Munialo relied on the replying affidavit sworn on **7/5/2026**, saying that the police have the mandate under the penal code to deal with forgery and perjury claims. Learned counsel said that the alleged harassment of Miss. Munialo, the advocate, was coming from the bar. 46. Having heard the two applications, the court directed that the process server be cross-examined on the contents of his two affidavits. He proceeded to swear and give testimony as PW1, confirming that he was a duly licensed process server for **18** years as per Certificate No. **286** issued on **15/2/2024**, and renewed vide receipt No. **048 550-5**, issued on **18/12/2025**. 47. PW1 confirmed swearing the affidavits dated **14/4/2026** and **22/4/2026**, whose contents he stood by. PW1 also confirmed being summoned by the DCI on **4th** and **7th May 2026**, whereby he wrote a witness statement dated **7/5/2026**. PW1 confirmed that he has known the 2nd respondent for a long time and also his place of business, where he effected service on **10/4/2026** at **10:00 a.m**. 48. In cross-examination by Mr. Munialo, PW1 denied consenting at the police station to alter the dates in the two affidavits of service. PW1 confirmed that the 2nd respondent had allegedly approached him to change the dates, yet he left him with a copy after he signed against his copy, which he returned to court. 49. In cross-examination by Miss. Munialo, PW1 insisted that he effected service at **10:05 a.m.** on **10/4/2026,** and not on **13/4/2026**. PW1 said that there was a possibility that the 2nd respondent changed the date on the copy he had left him with to read **13/4/2026** instead of **10/4/2026**. 50. PW1 confirmed that he effected service in the presence of the appellant and that the nearby CCTV must have captured his visit. PW1 said that the 2nd respondent was purporting to create new facts after the contempt application by misleading the court. 51. PW1 said that the police statement was not authored by him, only that he was told to sign it in the presence of the 2nd respondent. PW1 said that before going to the police, the 2nd respondent had approached him to vary the dates, promising to reward him if he did so, which he did not accede to. 52. PW1 faulted the translation as not showing the phone numbers of the two alleged persons in the conversation or the person who identified the voices. 53. Peter Lusweti testified as PW2. He told the court that he stands by all the affidavits he has sworn in the three applications. In cross-examination by Miss. Munialo advocate, PW2, admitted that the signature in the attached affidavit of George Munialo in the court file is his, but the actual date of service of the order was on **13/4/2026** and not **10/4/2026**. 54. PW2 said that though he appeared in court on **23/4/2026**, it was not his idea but that of his lawyer on record to admit to going and purge the alleged contempt of court. PW2 nevertheless admitted that he went ahead to purge the contempt by returning the fence to its initial position. 55. PW2 confirmed appearing in court on **28/4/2026**. He termed the submissions by the lawyer that day as from his own wisdom but not out of his instructions. PW2 admitted that the court had given him up to **3:00 p.m.** to appear and confirm the status of the subject matter. 56. PW2 said that his lawyer never informed him that he was supposed to appear in court at **3.00 p.m**. PW2 confirmed that he never raised the issue of service on **23/4/2026**. PW2 nevertheless admitted that he filed the police report on **28/4/2026**, following his conversation with the process server, after he admitted that he served the order on **13/4/2026** and not **10/4/2026**. 57. PW2 said that he never attached the impugned copy of the order showing service on **13/4/2026** to his affidavit(s) filed on **28/4/2026** or thereafter. PW2 admitted that he had no Safaricom call data record showing that he had a conversation with the process server regarding **PLM-(2).** 58. After the testimonies, learned counsel Mr. Munialo submitted that the order was only served on **13/4/2026**, and not **10/4/2026**. Miss. Munialo, advocate, on her part, submitted that the evidence of PW1 is not controverted and that in all the affidavits, the evidence was that the 2nd respondent interfered with the status quo, and that the issue of lack of service of the order is an afterthought. 59. Learned counsel failed to provide evidence that the translation did not adhere to the law, coupled with the fact that it was not accompanied by a call log data record from Safaricom. Learned counsel submitted that the alleged 2nd order signed by the 2nd respondent on **13/4/2026** is a forgery since he forgot that he had already signed against the copy retained by the process server, now before the court. 60. Contempt proceedings after the Contempt of Court Act was nullified must be undertaken, cognizant of the right to a fair hearing of the alleged contemnor. In ***Stephen Maina Githiga & Others -vs- Kiru Tea Factory Co. Ltd, Petition No. 13 of 2019***, the Supreme Court held that due to the quasi-criminal nature of contempt proceedings and the gravity of the consequences that flow from these proceedings, courts are required to adhere to the principles of natural justice, procedural fairness, and the right to a fair hearing. 61. The court held that this is because, in contempt proceedings, the liberty of the subject is usually at stake and therefore, if a party alleges breaches of his constitutional rights and freedoms at the Court of Appeal, the court cannot afford to shut its eyes to such serious legal issues. 62. The court said that in enforcing compliance with lawful court orders, the procedure to be adopted by the court must be fair and reasonable, in which full opportunity is given to the alleged contemnor to defend himself, and that the standard of proof is higher than in normal suits, and that one can only be committed to civil jail or penalized, based on evidence that leaves no doubt as to the contemnor’s culpability. 63. A contemnor demeans the integrity and authority of the court. In ***Republic -vs- Ahmed Abulfadhi Mohamed & Another [2018] eKLR***, the court said that a contemnor derides the rule of law, whose acts must not be allowed to happen. 64. In these applications, the court has allowed the alleged contemnor to defend himself. All the parties to the application have been accorded their rights under **Article 50(2)** of the Constitution on procedural justice. Procedural administration of justice, as held in ***Stephen Maina Githiga & Others -vs- Kiru Tea Factory Co. Ltd,*** *(supra),* involves the fair hearing rule and the rule against bias, due process of the law, and the right to controvert by proof every material fact which bears on the question of right in the matter involved. 65. In ***Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission [2015] eKLR***, the court said due process is a fundamental pillar of the rule of law to be observed by all courts, whose four corners include the right to be heard and the right to a fair hearing. In ***Githiga*** *(supra),* the court emphasised that the right to a fair trial under **Article 50(1)** of the Constitution is a non-derogable right as stipulated under **Article 25** of the Constitution. In ***Kidero & Others -vs- Waititu & Others [2014] eKLR***, the court held that a fair hearing incorporates the rights of natural justice and rules against bias. 66. Having said this, the court has looked at the three applications and the affidavits, the responses, oral testimonies, and written submissions by the parties’ advocates. The issues calling for my determination are: ***(1) If the 2nd respondent was duly served.*** ***(2) If the 2nd respondent is guilty of contempt of court.*** 1. It is a requirement of law that no person can be found guilty of contempt of court unless they were personally served with the order or had knowledge of the order. In ***Ochieng Nyamongo & Another -vs- Kenya Posts & Telecommunication Corporation [1994] KLR (1)***, an application for contempt was dismissed for non-personal service of the order and lack of a penal notice. 2. In ***Mutitika -vs- Baharini Farm Ltd*** *(supra)*, the court declined to allow an application for contempt of court because the order was in imprecise terms. In ***Republic -vs- Attorney General; Ex parte Birdi A. Gadhia Kisumu HC Misc. Appl. No. 124 of 1990***, the application was dismissed for non-service upon the Registrar of the High Court. 3. In ***Augustine Marete Rukunga -vs- Agnes Njeri Ndungire & Another [2001] eKLR***, the court declined to allow contempt proceedings where a party was unaware of an order by other means other than personal service, where the office effecting personal service failed to swear the affidavit of service personally. 4. In ***Ochieng Nyamongo & Another -vs- Kenya Posts & Telecommunication Corporation*** *(supra),* the court emphasised that the absence of an affidavit of service of the order renders the service ineffective. 5. In these applications, the 2nd respondent disputes service of the court order on **10/4/2026.** The 2nd respondent was given an opportunity to cross-examine the process server. There is a qualified presumption in law and in favour of the process service, as stated in the process server report, as held in ***MB Automobile -vs- Kampala Bus Service [1966] EA 480***. 6. In ***Shadrack Arap Baiywo -vs- Bodi Bach [1987] eKLR***, the court cited *Chitaley and Annaji Rao; The Code of Civil Procedure* Volume II, page 1670, which states that the burden lies on the party questioning the process server’s report to show that the return is incorrect. It states that the affidavit of service of the process server is admissible evidence and, in the absence of contest, it could be normally considered sufficient evidence in the regularity of service, and that if service is denied, a process server could be put in the witness box for cross-examination by those who deny it. 7. **Order 5 Rule 5** of the Civil Procedure Rules relates to the mode of service, an affidavit of service, and examination of a serving officer on oath. The 2nd respondent disputes the signature on the face of the order attached to the process server’s affidavit. He also disputes the date of **13/4/2026**. 8. The process server and the appellant insist that service was effected on **10/4/2026** and not **13/4/2026**. The 2nd respondent did not seek to cross-examine the appellant, who also witnessed the service of summons on **10/4/2026**. Other than mere denial and a report to the police, the 2nd respondent has produced no independent witness or evidence that he was not at the scene where service was effected on **10/4/2026**. 9. If indeed the court were to believe the version by the 2nd respondent that service was effected on **13/4/2026**, the easiest thing could have been for the 2nd respondent to depose on oath where he was on **10/4/2026** and that it was not possible for the process server to effect service upon him on that day. 10. Similarly, if the 2nd respondent was only available at the scene of service on **13/4/2026** and not **10/4/2026**, assuming he took a screenshot that day, the easiest thing could have been to bring the Safaricom call log data to show that he was only in the said locality with the process server on **13/4/2026** and not on **10/4/2026**. The alleged forgery or superimposition of the date on the court order, different from what he signed, is not supported by any scientific data or empirical evidence. 11. Even after the process server was put on the witness stand and insisted that he stood by the contents of the two affidavits, the 2nd respondent did not specifically put questions to test his veracity, credibility, and reliability to discount his affidavits on oath. 12. **Order 5 Rule 16** of the Civil Procedure Rules provides that the court may make further inquiry in the matter as it thinks fit. In this case, the court posed some questions to the process server. When the matter first came up on **23/4/2026**, the 2nd respondent did not raise the issue as a preliminary one due to its importance. He did not do so on **28/4/2026**. The 2nd respondent waited until the application was argued and a ruling date was given. He only made the application on **7/5/2026**. 13. Waiver of objection to service and participating in the proceedings is what the 2nd respondent did. In ***Sita Steel Rolling Mills Ltd -vs- Jubilee Insurance Co. Ltd [2007] eKLR***, the court said that a waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. In my considered view, the conduct of the 2nd respondent and his counsel was a clear, unequivocal, and irrevocable waiver of the right to question service of the order. 14. In the 3rd application, the 2nd respondent did not raise the issue of cross-examination of the process server. **Order 5 Rule 16** of the Civil Procedure Rules provides that it is the court that inquires as to service of the order or court summons. That power is not co-shared. It is the court in an application for contempt of court, such as this one, that makes all the necessary inquiries, including whether the order was properly served or not. 15. The 2nd respondent waived that opportunity and instead moved to the DCI to report the process server therein on account of alleged forgery of a court order before making a report over the same to this court, yet the court became seized of the application for contempt of court. 16. There is, nevertheless, no report from the DCI to support the application dated **7/5/2026**, in which the court is asked to vacate the contempt proceedings for want of service of the court order prior to the alleged contempt or to stay or set aside any further proceedings thereof. It was filed after the 2nd respondent had been in court twice, actively participating in the proceedings without raising the issue of when he was served with the order. 17. In the replying affidavit sworn on **28/4/2026**, there is no specific reference in paragraphs **6** and **7** to the service of the order being effected on **13/4/2026**, and not **10/4/2026**. Further, there is no mention of what the 2nd respondent did upon service of the order. He does not deny acknowledging receipt of the order on the face by signing and retaining a copy. 18. The said affidavits do not in any way dispute service of the order or raise issues that the process server and the appellant had colluded to purport to say that he disobeyed the court order by changing the dates on the aspect of service. 19. The court agrees with the appellant and the process server that the issue of service of the order was an afterthought. The court finds the 3rd application lacking merit. It is dismissed with costs. 20. Turning now to the facts leading to the application for contempt. See paragraph **8** of this ruling. 21. The court has carefully looked at the 2nd respondent’s replying affidavit dated **28/4/2026**. The 2nd respondent says that the lower court judgment confirmed his rights over the suit property on **Plot No. 9**, Kwanza Township, which he immediately took steps to secure by erecting a fence, upon establishing that the appellant wanted to sell it to Mr. Halal Mavji without his consent, and placed notices that it was not for sale. He says that the application for a stay and issuance of the order came after the fencing and placing of the notices. 22. The 2nd respondent does not state the date on which, between **2/4/2026** and **9/4/2026**, he did that. It is that conduct which is the basis of the allegation of contempt of court. The order was specific. The status quo as of the date of delivery of the lower court judgment be maintained. It went on to state that there should be no interference with the existing tenancy arrangements or disturbance of the substratum of the appeal. 23. The process server, in his affidavit dated **14/4/2026**, says that the 2nd respondent was served with the order on **10/4/2026** at his mini-petrol station, signed, dated, and appended his name on the face of the principal copy hereto returned to court. The 2nd respondent also received the court papers on behalf of the 1st respondent, who is his biological brother. 24. In the supporting affidavit sworn on **22/4/2026**, the appellant, at paragraph **8**, says that on **11/4/2026**, at around **5:00 a.m.**, the 2nd respondent demolished the fence and sealed off the area behind the disputed plot, hence completely denying the appellant and his tenants access to the plot from behind. The appellant attached photos, notices, and receipts as annexures **AKA (3), 4(a)** and **(b),** and **5(a)** and **(b).** 25. In paragraph **15**, the appellant further says that the 2nd respondent did not follow due process even before taking over the property, for he had not assessed costs or sought leave to execute before assessing costs under **Section 94** of the Civil Procedure Act. 26. In the supporting affidavit sworn by one of the tenants, Titus Kisiero on paragraphs **3-6**, he says that the 2nd respondent who is his neighbour on the next plot demolished the fence on **Plot No. 116** Kwanza Township on **11/4/2026**, removed all the iron sheets, sealed off the behind space effectively closing him out, leaving no access from behind, exposed him to insecurity and placed goons on the side together with warning sign posts. 27. The process server in the supplementary affidavit says that at the time he served the order, the 2nd respondent made it clear that the court order would not stop him from doing what he was going to do. These are the facts which the court is asked to find as constitutional contempt of court. 28. When the 2nd respondent was given an opportunity to defend himself against all these allegations, the first opportunity was the affidavit in reply sworn on **28/4/2026**. The affidavit is silent on the alleged execution did not follow due process, since costs had not been assessed at the lower court, or a decree waiting execution had not been issued. 29. **Section 94** of the Civil Procedure Act is in mandatory terms. In ***Bamburi Portland Cement Co. Ltd -vs- Hussein [1995] eKLR***, the court said that if leave is not sought informally at the delivery of the judgment, it must be sought by way of a notice of motion. There must be compelling reasons and exceptional circumstances to warrant the exercise of that discretion, as held in ***Ngari -vs- Kenya Meat Commission [2023] KEELRC 3139 [KLR]***. 30. There is no evidence that the certificate of lease dated **5/2/2020** in favour of the appellant had been cancelled by **9/4/2026** or **28/4/2026** or to date, for the 2nd respondent to have capacity other than the judgment, to purport to take over the suit premises in the manner he admits he did, to secure its security and preservation. 31. The 2nd respondent, at the lower court, had no counterclaim, save for the statement of defence dated **13/3/2020**. The trial court dismissed the appellant’s suit but declared the title for **Trans Nzoia/Kwanza/116** illegally obtained. In the said statement of defence, the 1st respondent alleged having bought the plot from a third party who had bought it from an initial allottee, vide an allotment letter dated **30/8/1992**, whereafter they took vacant possession and built temporary structures. 32. The 2nd respondent had alleged that they were paying rates in the name of Evelyne Nakhumicha Wafula, while awaiting processing of their title documents. All this information is contained in the supporting affidavit to the notice of motion dated **9/4/2026**, which gave rise to the orders of status quo. The appellant states in paragraph **13** of the supporting affidavit that without interim orders, the title would be cancelled, his plot taken over, and the tenants already in place disturbed. 33. The 2nd respondent filed a replying affidavit sworn on **17/4/2026** in response to that notice of motion. In the said affidavit, the 2nd respondent is silent on whether he had moved in and secured the suit premises. The court takes judicial notice of what the 2nd respondent said in his affidavit and what he deposed in subsequent affidavits in the context of what the status quo was as of the delivery of the judgment and by **9/4/2026,** when the court issued the interim orders. The appellant says that the 2nd respondent has interfered with the orders of maintenance of status quo generally and, in particular, has interfered with his tenants. 34. Contempt of court refers to disregard of or disobedience of court orders or directives. As held in ***Econet Wireless (K) Ltd*** *(supra)*. Courts do not condone deliberate and willful disobedience of their orders and will not shy away from their constitutional responsibility to deal firmly with proven contemnors of their orders. 35. Compliance with court orders is a fundamental concern in any society that seeks to base its operations on the rule of law. A party that knows of an order and deliberately or willfully disobeys it has to face the consequences. 36. The 2nd respondent, as indicated above, was duly served with the court order, signed, dated, and appended his name on the court copy, returned herewith. This was done at his mini-petrol station on **10/4/2026** at **10:05 a.m**. It happened in the presence of the appellant, whom, strangely, did not insist on cross-examining, yet he says in the replying affidavit sworn on **28/4/2026** that he is out to collude with the process server to unjustly accuse him of contempt of court. 37. The 2nd respondent indicated to the process server on **10/4/2026** that the order would not stop him from doing what he wanted to do. Again, the 2nd respondent, when given a chance to cross-examine the process server, did not ask questions about those assertions, which goes to the root of the intention to disobey the court order. 38. The 2nd respondent in paragraph **7** of the replying affidavit says that the order came after he had fenced off the suit properties. In paragraph **8** thereof, he says that the applicant is misleading or misrepresenting the sequence of events by making false claims. 39. The 2nd respondent, when given a chance, did not opt to cross-examine the appellant on the so-called misrepresentation of the sequence of events. Strangely, the 2nd respondent did not respond, deny, or seek to cross-examine the tenant who swears in his affidavit that he, just like the appellant, witnessed the disobedience on **11/4/2026** at **5:00 a.m.**, when the 2nd respondent committed the acts of disobedience and sealed off the area completely, denying the appellant access from the backyard. 40. In paragraphs **9, 10, 11,** and **12** of the supporting affidavit, the 2nd respondent says that he, after the directions of **23/4/2026**, undid the damage so that the matter could proceed without unnecessary obstruction and delays. 41. Compliance with a court order is not a favour parties give to the court. It is not for a party to choose what to obey in a court order or when to obey it. Court orders are not made in vain. They are not mere words but are made after much reasoning and in the interest of justice. It is not for the parties to second-guess the intention of the order. The said order was in precise, clear, and unambiguous terms. It specifically mentioned that there should be no interference with the existing tenancy arrangements. 42. The 2nd respondent in paragraph **12** of his replying affidavit says that the application dated **9/4/2026** merely alleged that there was a “disturbing tenant” without providing any particulars. In paragraphs **14-19** of the replying affidavit, instead of sticking to the issues of service of the order, whether there was proper execution before compliance with **Section 94** of the Civil Procedure Act, and if the acts of fencing off constitute contempt of court, the 2nd respondent has run away from them and instead wants the court to ignore or trivialize what is before it. 43. As indicated above, the 2nd respondent has sworn several affidavits so far, making conflicting and contradictory statements. In ***Chepkwony -vs- Samoei Civil Appeal No. 174 of 2020 [2026] KECA 1036 [KLR] (29th May 2026) (Judgment)***, the court observed that the appellant was clutching at straws to make any statement whatsoever just so that the court would find in his favour. The court cited ***S -vs- Mafaladiso en andere (2003) (1) SACR 583 (SCA) at 593F-594G,*** on the judicial approach to contradiction between two witnesses and contradiction between the versions of the same witness, between his *viva* *voce* evidence and previous statement. 44. Mere self-contradictions in the versions of the 2nd respondent vis-à-vis what the appellant, the process server, and the tenant have said in these proceedings make the court approach the version of credibility and reliability of the 2nd respondent with caution. 45. A party that knows of an order, whether null or void, regular or irregular, cannot be permitted to disobey it. The burden of proof is higher than in ordinary suits. See ***Mutitika*** *(supra).* The 2nd respondent appears to question the basis of the application leading to the order, as regards whether there were tenants or not. Nothing stopped the respondents from coming to court to apply for discharge of the interim orders or for leave to execute before taxation, instead of disobeying the order or taking the law into their own hands; if at all, the orders were going to adversely affect them or derail the realization of the fruits of their judgment. 46. Choices have consequences. The respondents opted to execute a decree of the lower court when it had not been extracted. The respondents did not adhere to **Section 152A-I** of the Land Act to evict the appellant or his tenants from the suit premises. There is no evidence that the respondent, as of **9/4/2026**, had title to the suit premises as a basis for taking over the suit premises as new owners. 47. The respondents took it upon themselves to determine who should be on the suit premises. The conduct was willful and deliberate. By doing so, the 2nd respondent undermined the authority and dignity of this court and the supremacy of the Constitution. 48. Clear and cogent evidence has been tendered to connect the 2nd respondent with acts contrary to the order issued on **9/4/2026**. See ***Kenya National Union of Teachers*** *(supra).* 49. The Constitution commands that orders and decisions by courts bind all persons to whom they are addressed. Disobedience of court orders and directives risks rendering courts impotent and making a mockery of judicial authority. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. 50. The 2nd respondent has failed to advance his evidential burden once service of the order, knowledge, and non-compliance have been proved, to raise a reasonable doubt as to whether non-compliance was willful and *mala* *fides*. 51. The court finds the 2nd respondent guilty of contempt of court. He is directed to proceed with mitigation further before sentencing. 52. As regards the 2nd application dated **6/5/2026**, I think the issues raised have been dealt with in this ruling; otherwise, it is marked as spent. 53. Orders accordingly. **Ruling dated, signed and delivered,** via **Microsoft Teams/Open Court** at **Kitale** on this **29th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis Miss Wanyonyi and Mrs Munialo for the respondents present 2nd respondent present  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**