Atieno v Omaido (Environment and Land Case E047 of 2025) [2026] KEELC 2039 (KLR) (15 April 2026) (Ruling)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ELC NO. E047 OF 2025 LILIAN PLAINTIFF/ APPLICANT ATIENO------------------------------------ VERSUS JACKSON EKIM OMAIDO----------------DEFENDANT/RESPONDENT RULING 1. On 15/10/2025, an order of the maintenance of the status quo was issued by this court pending hearing and determination of an application dated 5/9/2025, seeking a temporary order of injunction against interference by the respondent over L.R. No. 8699/7. Subsequently, through a ruling dated 20/11/2025, a temporary order of injunction was issued against the respondent. The applicant by an application dated 6/11/2025 came back to court to complain that the respondent on 29/10/2025, without any colour of right or lawful justification interfered with the beacons in preparation to enclose the suit property with a fence contrary to the orders of the court, claiming in front of members of public that the applicant had not RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 1 fully paid for the suit property, hence the justification to interfere with the status quo. The applicant urges the court to hold the respondent liable for contempt of court. 2. In support, of the application Lilian Atieno has sworn an affidavit on 6/11/2025 stating that though the order issued on 15/10/2025 was duly served, the respondent on 29/10/2025 made entry into the land, together with his workmates, tempered with and removed the existing boundary beacons and proceeded to fence off the property using barbed wire and wooden poles, thereby altering the condition of the land contrary to the order of maintenance of status quo. 3. The applicant has attached copies of photographs and the OB report to Waitaluk Police Station as annexures marked LA-(2) and (3). The applicant terms the said acts as gross, willful, and deliberate contempt of lawful orders of this court, contrary to Section 5 of the Judicature Act, Section 29 of the Environment and Land Court Act, and Articles 159 and 162 2(b) of the Constitution. 4. The application is opposed through a replying affidavit of Jackson Ekim Omaido, sworn on 14/1/2026. He admits that his wife was duly served on his behalf, RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 2 with the court order dated 23/12/2025, as he was not present at the time. The respondent deposes that upon service with the order, he was informed of its contents and his advocate advised him of its meaning, hence sought to comply with it in good faith and without delay. 5. The respondent says that in compliance with the said order, he has ensured that all structures that had been erected therein were removed to give the applicant possession of the suit land. 6. The respondent undertakes to give quiet possession of the suit property to the applicant for a period of one year as directed by the court. The respondent terms the application as overtaken by events, as the applicant is currently in quiet possession of the suit property pursuant to his full compliance with the court orders. 7. When the parties came for an interpartes hearing on 22/1/2026, the alleged contemnor gave a sworn testimony on top of his replying affidavit. He confirmed that the applicant had bought some land from him. The respondent denied service with the initial order. Further, he explained the reasons for the fencing to ward off some squatters from his land. RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 3 8. In cross-examination, the respondent admitted that he went to the suit property alongside a surveyor to erect some boundary poles, following a letter from the Land Surveyor and Land Registrar. The respondent confirmed that he was in the process of processing title deeds for the purchasers of the suit property, among them the applicant. 9. Learned counsel Mr. Otieno submitted that, though contempt of court had been committed by the respondent, confirmation of purging it was not before the court, and or evidence that the respondent was willing to continue complying with the court order. 10. Learned counsel submitted that the alleged surveyor’s and land registrar’s reports or letters were not before the court as attachments to the replying affidavit or a statement of defence. 11. Learned counsel, Mr. Onyango, for the respondent, submitted that the photographs attached to the supporting affidavit do not show the respondent being on the suit property or infringing the court order. Learned counsel submitted that there was confusion on the land since there were some squatters who were also interfering with the suit property. 12. Learned counsel submitted that the alleged contempt has been purged by restoring the fence and removing RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 4 the offensive materials. Learned counsel submitted that, given the full compliance with the order, the court should only issue a warning to his client that any recurrence of the same will be met with the full force of the law. Learned counsel asked that his client be pardoned with no payment of costs. 13. In Kioko & others -vs- Muli and others Civil Appeal 528 of 2019 (2026)KECA 693(KLR)(25 March 2026) Judgment, the court said the current statutory framework on contempt is Section 5 of the Judicature Act and Section 63 (c) of the Civil Procedure Act. The court held that obedience to court orders is not optional and disobedience thereof has repercussions, for it undermines the rule of law; its power to punish is inherent and is essential for maintaining the authority and dignity of the judicial process. 14. The ingredients of contempt of court were set out in Wekesa & Others -vs- Munialo [2025] KECA 679 KLR. The terms of the order must be clear and unambiguous, the respondent must have proper knowledge or notice of the terms of the order, and the respondent must act in breach of the order. See Mutitika -vs- Baharini Farm Ltd [1085] KLR 229 RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 5 and Shimmers Plaza Limited -vs- National Bank of Kenya Limited [2015] KECA 945 (KLR). 15. In Githinga & Others -vs- Kiru Tea Factory Co. Ltd (2019) (2023) KESC 41 (Judgment), the court held that in contempt proceedings, the liberty of the subject is at stake. Further, the court held that the courts possess inherent powers to enforce compliance with lawful orders through sanctions imposed through contempt of court. The court observed that in enforcing compliance with lawful court orders, procedures adopted by the court must be fair, reasonable, and be such that a full opportunity is given to an alleged contemnor to defend himself or herself. The court cited Republic - vs- Ahmed Abdul Mohamed & Another [2018] eKLR, that contemnors demean the integrity and authority of courts, but also deride the rule of law, which acts must not be allowed to happen. 16. In this application, the respondent has admitted service of the order and the alleged contempt in the replying affidavit sworn 4/1/2026. The de says that the failure to comply was not deliberate or willful. 17. He denies receipt of the order dated 15/10/2025. The applicant has not provided evidence of service of the order personally to the respondent before the RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 6 events of 29/10/2025. The issue of contempt belittles and undermines the authority and powers of the court. That is why an applicant has to establish that the actual act of contempt took place in utter disregard of an existing order. See Titus Musyoki Nzioka -vs- John Kimathi Maingi & Another [2013] eKLR. 18. Court orders must be obeyed by all who have been served with the order. In Katsuri Limited -vs- Kapurchand Depar Shah [2016] eKLR, the court held that the terms of the order, knowledge of the terms, and failure to comply have to be established. 19. In Hadkinson -vs- Hadkinson [1952] 2 ALL ER 567, the court said that disobedience which continues to impede the cause of justice by making it more difficult for the court to ascertain the truth or to enforce its orders, may lead to the respondent being denied audience. 20. The respondent has admitted that as soon as he was made aware of the order and advised by his advocate on the purport of the same, he purged the contempt. In A.B. & Another -vs- R.B. [2016] eKLR, the court held that compliance with court orders is an issue of judicial concern for a society that seeks to base itself on the rule of law, which is a fundamental virtue. RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 7 21. Judicial authority of the state is vested in the courts, and gives everyone the right to have legal disputes resolved in court. 22. Purging contempt includes apologising or paying a fine. The positive acts in compliance with the court order are what the respondent has indicated in his affidavit in reply. The applicant did not file a supplementary affidavit to deny that there is now full compliance with the order. 23. The upshot is that I find the respondent has purged the contempt. He is henceforth warned to comply with the order until the suit is heard and determined. 24. The application dated 6/11/2025 is marked as spent with costs to the applicant. 25. Orders accordingly. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 15th day of April 2026. In the presence of: Court Assistant – Dennis Mr. Otieno for the plaintiff present Cherono for Onyango for the defendant present HON. C.K. NZILI JUDGE, ELC KITALE. RULING: KITALE ELC NO. E047 OF 2025 – D.O.D. – 15/04/2026 8