https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8510

AWB v HTD (Family Appeal E003 of 2025) [2026] KEHC 8510 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEHC 8510 (KLR) Republic of Kenya In the High Court at Marsabit Family Appeal E003 of 2025 FR Olel, J June 16, 2026 Between AWB Applicant and HTD Respondent Ruling A. Introduction 1.The application before the court for determination is the Notice of Motion application dated 15th April 2026 brought pursuant to provisions of Section 5 of the Judicature Act, Cap 8 laws of Kenya, and 3A of the Civil Procedure Act, and all other enabling provision of law. The Applicant seeks for orders that;a.Orders (a) – (f) are Spent.(e)That this Honourbale court be pleased to order the respondent to be committed to civil jail and/or the necessary fine be imposed on the respondent for contempt for disobedience of the orders issued on 20th November, 2025 and further orders issued on 19th February 2026 by Justice Francis Rayola Olel in Marsabit High Court HCFA No E003 of 2025 AWB Vrs HTD & 2 Proposed Interested Parties.b.That costs of this Application be provided for. 2.The said application is supported by the ground stated on the face of the said application and the attached supporting affidavit dated 15th April 2026, sworn by the applicant, HTD, who deponed that this court did issue two orders dated 20th November, 2025 and 19th February 2026 allowing her to access and remain on her matrimonial property, which order was issued in the presence of the respondent in open court. On 11th April 2026 she did attend a funeral within Marsabit town and when she went back to her home, was locked out by the respondent, who informed her that she no longer had access to the said matrimonial home. 3.She further averred that the respondent had brough his second wife, and her children to occupy the said premises and her best efforts, and plea to be allowed to pick her cloths, had fallen on deaf years. She had thus been rendered homeless without any justification and in direct contravention of the court order referred to above. It was her further contention that she had taken a loan, which was utilized in construction of the said house, and which loan she was still paying and thus the respondents act to bring his 2nd wife to the said premises was an egregious violation of her right to property and also a purposeful violation of the express court orders, which granted her unlimited access to the said matrimonial property. 4.It was therefore proper and just for the court to protect its own dignity and punish the respondent for his deliberate refusal to comply with the express orders issued by this court. (ii) The Response 5.The appellant/respondent did file his replying affidavit dated 20th May 2026, in opposition to the said application and deponed that the respondent/applicant was guilty of material non-disclosure and was weaponizing interim orders obtained during subsistence of a marriage, which had subsequently been lawfully dissolved. In particular, he had on 16th January 2026, pronounced “Talaq” upon the applicant in accordance with Islamic law and that the three months waiting period under sheria law (Iddat) lapsed on or about the 14th April 2026. He reiterated that the court orders referred to had been issued during subsistence of the marriage and for purposes of preserving peace and emphasized that the said orders could not be used by the applicant to indefinitely occupy the matrimonial home, when the said marriage had collapsed and ceased to exist. 6.He further stated that he was the registered owner of the matrimonial property, and it was paradoxical for the applicant to alleged that, he had “violently occupied”, what he owned. He also denied the applicants averment that he had forcefully evicted her from the matrimonial property and stated that contrary to what she was alleging, after expiry of the “Iddat period”, the applicant had peacefully picked her belongs and left voluntarily without any fight. It was thus not true that he had thrown out her property and/or assaulted the applicant as alleged and the subsequent report to the police had been made as a strategic afterthought calculated to manufacture evidence for litigation purposes. 7.The respondent further averred that the applicant was not a destitute, as she was employed by the County Government of Marsabit, which employment he had helped her secure and had also financed her education and supported her extended family, often at great personal sacrifice throughout the said marriage. Far from being the aggressor, he had been subjected to intimidation and violence which was organized and perpetrated by the applicant. Specifically, on 10.02.2026 to 13.02.2026 she had lock him out of the matrimonial home and again on 07.05.2026, she did arrive at the matrimonial home accompanied approximately forty (40) relatives, amongst them her brother ITD, who physically assaulted him and occasion him injury that required him to seek treatment at Marsabit County Hospital and Haven Hospital. 8.The applicant had also subjected him and their children to incessant verbal abuse, which had caused the children to suffer emotional distress and fear. He reiterated that he had not disobeyed the court orders earlier issued, and that the status quo had changed given the marriage had ended and that they could not continue to cohabit together after the “Iddat period” had been observed. In the premises he prayed that this application be dismissed with costs and that the interim orders earlier issued be discharged in light of the dissolution of the marriage B. Analysis & Determination 9.I have carefully considered the Application, its Supporting Affidavit, the Respondent’s Replying Affidavit, and counsels oral submissions made before court on 25.05.2026. The only issue that arises for determination is whether the Appellant/Respondent is in contempt of the court orders issued on 20.11.2025 and 19.02.2025, which allowed the applicant to continue occupying the matrimonial home.The Black’s Law Dictionary, defines contempt as;(14)“Contempt is a disregard if, 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 to impair the respect due to such a body.” 10.The learned authors of the book ‘Contempt in Modern New Zealand’ also succinctly stated that:-“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate. 11.In the High Court of South Africa in the case of Kristen Carla Burchell vs. Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005, the court held that in order to succeed in civil contempt proceedings, the applicant has to prove: -(i)the terms of the order,(ii)Knowledge of these terms by the Respondent,(iii)Failure by the Respondent to comply with the terms of the order 12.In Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 Ibrahim J. (as he then was) relied on the Court of Appeal decision in Gulabchand Popatlal Shah & Another civil application no. 39 of 1990, (unreported), the Court of Appeal said:“…… It is essential for the maintenance of the Rule of Law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors ……” 13.It was also held by the Constitutional Court of South Africa in Burchell v. Burchell, Case No 364/2005 that:-“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law. 14.Back to the facts at hand, i find that the terms of this court orders issued on 21.11.2025 and 19.02.2026 were clear and concise. The same were made in open court in the presence of the Appellant/respondent and his counsel and knowledge of the said orders is not denied. 15.The second question that arises is whether the respondent acted in breach of the said order. The applicant alleges that the respondent unlawfully locked her out of the house from 11.04. 2026, and had proceeded to occupy the said house with his second wife and children. The respondent on the other hand admits that the applicant no longer resides in the said premises, as he had subsequent to the order of 21.11.2025, issued a Talaq decree upon the applicant and the three months period (Iddat) for the said Talaq to take effect had lapsed on 14.04.2026. The marriage had since been lawfully dissolved and it was wrong for the applicant to convert court instruments to further her interest of infinitely occupying the matrimonial property. He denied violently evicting the applicant and reiterated that she packed her belongs, after expiry of the Iddat period and voluntarily left. 16.The fact that the applicant is no longer residing in the matrimonial home was satisfactorily proved, but the fact that she was violently thrown out of the said premises in violation of the previous court orders issued was not proved, as the respondent also gave a plausible explanation of what occurred. Both parties were not cross examined to verify the averments made and it remains a moot point as to whether she was forced out and/or that she voluntarily left. See Section 3(4) of the Evidence Act, which states that, “A fact is not proved when it is neither proved nor disapproved” 17.Secondly, even if the court was to find otherwise, the order of 19.02.2026 was also not open ended, it clearly stated that the parties were to maintain peace while the Talak/divorce proceedings take place before the Kadhi and the respondent was directed not to change padlock or breakdown gate and/or lock out the respondent from the matrimonial house. The said Talak was issued by the respondent on 16.01.2026 and Iddat period lapsed on or about 14.04.2026. In all honesty, to purport to enforce the said order after divorce would not make any sense. 18.Finally, it is noted that this appeal pertains to a vicious family dispute, between parties who have “six children aged between 6 years to 21 years” to bring up and mold to be useful Kenya citizens. Since the respondent has already effected and finalized his divorce with the applicant, it is no longer feasible that they stay together and his averment’s that he was assaulted by the applicant’s brother and her relatives is also not denied. These are exogenous circumstances, which mitigate against punishing/jailing one parent, the net effect of which, will only increase the toxic environment already suffocating their children. 19.Both parties are advised to act, be and do better, while giving priority to their children’s welfare. Disposition 20.The Application dated 15th April 2026 therefore lacks merit and is dismissed with no orders as to costs. 21.It is so ordered. READ, SIGNED, AND DELIVERED VIRTUALLY AT MARSABIT ON THIS 16TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 16TH DAY OF JUNE 2026.In the presence of: -………………………… Applicant………………………… Respondent………………………… Court Assistant