https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3575

Baikenda v Nkumbuku & 3 others (Environment and Land Appeal E038 of 2023) [2026] KEELC 3575 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3575 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E038 of 2023 JO Mboya, J June 11, 2026 Between James Kirema Baikenda Appellant and Kainda Kamui Nkumbuku 1st Respondent Nkunja Kamui 2nd Respondent Catherine Kobia Alias Cieteri 3rd Respondent Faith Nkunja Kamui 4th Respondent Ruling 1.Before me is the Notice of Motion Application dated the 09.03.2026; brought pursuant to the provisions of Order 40 Rule 3 of the Civil Procedure Rules, 2010; Sections 1 A, 1B and 3 A of the Civil Procedure Act; and Section 5 of the Judicature Act; and Section 29 of the Environment and Land Court Act, 2011; and wherein the Appellant/Applicant [hereinafter referred to as the Applicant] has sought the following reliefs:i.…………………………………………………………...spent.ii.This Honourable court be pleased to find the respondents jointly and severally in contempt of the decree and orders issued on 6th March 2024 in ELC Appeal No. E038 of 2023.iii.This Honourable court be pleased to commit the respondents to civil jail for a term not exceeding six [6] months for willful disobedience of the court’s lawful orders.iv.In the alternative to prayer 3 above, the respondents be ordered to pay a fine as this court may deem fit.v.This officer commanding station [OCS] Maua Police Station do enforce compliance with the court’s decree and provide security during the implementation by the Land Registrar’s.vi.Costs of this application be provided for. 2.The subject application is premised on various grounds which have been enumerated in the body thereof. The grounds are: the appellant filed the instant appeal; the appeal was heard and disposed of vide judgment rendered on the 06.03.2024; the court directed that the Land Registrar and the County Surveyor to visit L/R No. Amwathi/Maua/9179 and 9336 [hereinafter referred to as the suit properties]; the named officers visited the locus in quo on the 03.09.2024; despite the visitation, the officers were unable to undertake the assignments; the respondents herein defeated the intended action and the conduct of the respondent was contrary to and in contravention of the orders of the court. 3.Additionally, it has been posited thus: the Land Registrar and the County Surveyor returned to the locus in quo on the 13.05.2025; the Land Registrar and the surveyor were accompanied by police officers from Maua Police Station; the Land Registrar the County Surveyor undertook the measurements in respect of L R No. Amwathi/Maua/9179; the Land Registrar and the surveyor were no able to undertake the necessary measurement in respect of L R No. Amwathi/Maua/9336; the failure to undertake the measurements was as a result of the non-cooperation by the respondents; the respondents blocked/restrained the Land Registrar and the surveyor from accessing the property in question; the respondents became hostile; the respondents resisted any attempts by the Land Registrar and the County Surveyor to comply with the court orders; and the respondents are therefore guilty of contempt. 4.Furthermore, it has been contended thus: the respondents have continued to occupy the disputed portion of land; the respondents are still interfering with the disputed portion of land and the respondents have obstructed the implementation of the land registrar’s findings. 5.The subject application is supported by the affidavit sworn on the 09.03.2026. The deponent of the supporting affidavit [ James Kirema Baikenda] has reiterated and reaffirmed the grounds contained in the body of the application. Moreover, the deponent has ventured forward and annexed assorted documents inter alia a copy of the land registrars report dated the 11.06.2025; copy of the decree; and two sets of letters written to the respondents’ advocate, respectively. 6.The respondents herein filed the grounds of opposition dated the 28.05.2026; and the Notice of Preliminary objection dated the 13.05.2026. the issues raised at the foot of the grounds of opposition and the notice of preliminary objection are similar. 7.The grounds of opposition have highlighted various issues. The issues are:The subject application is incompetent; the hon. Court did not issue any mandatory orders against the respondents; the Land Registrar and the surveyor have not filed any affidavit to confirm the allegations; the court did not direct the respondent to undertake any action or otherwise; and the application before the court does not meet/satisfy the threshold to warrant citation and punishment for contempt. 8.The subject application came up for hearing on the 14.05.2026, whereupon the advocates for the parties agreed to canvass and dispose of the application dated the 06.03.2026; and the notice of preliminary objection dated the 13.05.2026 simultaneously. In addition, the learned counsel for the parties also proposed to dispose of the matter, namely, the Application and the Preliminary Objection; by way of written submissions. 9.To this end, the court proceeded to and issued directions. The directions were: the applicant shall file and serve written submissions within 14 days from the date of directions; the respondents shall file and serve written submissions within 14 days from the date of service; and the applicant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 10.The applicant filed written submissions dated the 29.04.2026 and wherein the applicant has highlighted and canvassed four [4] key issues. The issues are: Whether there exist a valid and binding court order; whether the respondents had knowledge of the said order; whether the respondents have willfully disobeyed the court order; and whether the applicant is entitled to the orders sought. 11.Regarding the first issue, learned counsel for the applicant has submitted that this honorable court [ differently constituted] delivered a judgment on the 06.03.2024 and wherein the court directed the Land Registrar and the County Surveyor to visit the suit property and to determine the boundary dispute concerning the suit properties. Moreover, it has been posited that thereafter the applicant extracted the decree. 12.In addition, it has been submitted that the judgment of the court and the resultant decree have neither been challenged nor reviewed. To this end, it has been posited that the Judgment in question remains in existence. 13.Secondly, learned counsel for the applicant has submitted that the respondents herein are privy to and knowledgeable to the terms of the judgment and the consequential decree. It has further been submitted that the judgment under reference was delivered in the presence of the advocates for the respective parties. In this regard, it has been submitted that the respondents are therefore aware of the order. 14.The next issue that has been submitted upon touches on and concerns disobedience of the orders of the court. It has been submitted that despite being aware of the terms of the judgment and the consequential decree, the respondents have blocked/barred the Land Registrar and the surveyor from concluding/completing the survey exercise in accordance with the judgment of the court. 15.In particular, it has been submitted that the respondents herein has resisted attempts by the Land Registrar and the County Surveyor to undertake the determination of the boundary between the suit properties. Furthermore, it has been submitted that the respondents have continued to occupy and to interfere with the disputed portion of land. 16.Regarding the last issue, it has been submitted that the actions/activities by the respondents are intentional and deliberate. Moreover, it has been submitted that the actions of the respondent have also been repeated on multiple occasions and thus the respondents have defeated the implementation of the terms of the judgment. To this end, it has been posited that the respondents are therefore guilty of willful disobedience of lawful court orders; and thus same ought to be cited and punished for contempt of court. 17.Thereafter learned counsel for the applicant has cited and referenced various decisions. The decisions are: Econet Wireless Kenya Limited versus The Minister for Information and Communication and another [2005] eKRL; Shimmers Plaza Limited versus National Bank of Kenya Limited [2015] eKRL; Teachers Service Commission versus Kenya National Union of Teachers and two others [2013] eKRL; and Mututika versus Baharini Farm Limited [1985]eKLR, respectively. 18.Flowing from the foregoing, the applicant has invited the court to find and hold that the respondents are guilty of willful disobedience of the court and thus same ought to be cited and punished for contempt. 19.The respondents filed written submissions dated the 05.06.2026 and wherein same have raised and canvassed three [3] key issues. The issues are: The application by the applicant does not meet/satisfy the threshold for contempt; the applicant has neither extracted nor served the respondents with the decree/order of the court duly indorsed with the penal notice; and the applicant has not established/proven contempt to the requisite standards. 20.Learned counsel for the respondents has thereafter submitted that the applicant was obligated to place before the court credible evidence to demonstrate the actions complained of. Nevertheless, it has been submitted that there was no order which was issued/directed against the respondents and which compelled the respondents to take any action; or perform any duty. 21.Additionally, it has also been submitted that punishment for contempt ought to be undertaken in the clearest of case[s] and for purposes of ensuring compliance with court orders. In particular, it has been reiterated that there are no orders which were issued against the respondents. 22.Premised on the foregoing, learned counsel for the respondents has submitted that the subject application is premature, misconceived and legally untenable. The court has been invited to dismiss the application with costs to the respondents. 23.Having reviewed, the Notice of Motion Application [The Application] dated the 06.03.2026; the supporting affidavit thereto; the notice of preliminary objection dated the 13.05.2026 and grounds of opposition dated the 28.05.2026; and upon consideration of the written submissions filed/on behalf of the respective parties; and bearing in mind the law as pertains to contempt of court, three [3] key issue do arise and are worthy for determination. The issues are: Whether the court issued any orders against the respondents capable of being disobeyed or otherwise; whether the applicant has established/proven contempt to the requisite standards; and what reliefs [if any] ought to be granted. 24.Regarding the first issue, it is important to recall and reiterate that the applicant herein is the one who filed the appeal before this court. In addition, it is common ground that the appeal was heard and disposed of vide judgment delivered on the 06.03.2024. The judgment under reference allowed the appeal and issued certain orders. 25.It is instructive to state that the court [differently constituted] directed the Land Registrar to visit the locus in quo [suit properties] within two weeks from the date of the judgment and to undertake his mandate in line with Sections 14 to 19 of The Land Registration Act, 2012. For ease of reference paragraph 36 of the judgment stated thus:“The upshot is that I find the judgment by the trial court a nullity. The is set aside and vacated. The Land Registrar of the affected parcels is directed to visit the locus in quo within two weeks from the date hereof and undertake its mandate in line with sections 14 to 19 of the land registration act, after which the parties herein are to appear before the trial court for further directions on 25.04.2024.” 26.My reading of the paragraph [which has been reproduced above] drives me to the conclusion that the learned judge ordered and directed the Land Registrar to visit the locus in quo. Furthermore, the learned judge circumscribed the duration within which the visitation was to be undertaken. Moreover, it was posited that after the visitation of the locus in quo, the parties herein were to appear before the trial court for [sic] further directions. 27.It is not clear what ‘further directions’ were to be issued and or granted by the lower court, taking into account that the learned judge found and held that the lower court was devoid of jurisdiction to entertain the dispute that had been mounted before it. Furthermore, the learned judge declared that the lower court had acted without jurisdiction and that the judgment of the lower court was a nullity. 28.Be that as it may, the discernable orders relate to and concern the land registrar, who was directed to visit the locus in quo. In my humble view, it is the Land Registrar who was tasked with the visitation of the locus in quo. It is the Land Registrar who was obligated to undertake the exercise. If the Land Registrar was unable to comply with the directions of the court, then a suitable application ought to have been made. 29.However, I beg to point out that there is no order which was directed against the respondents herein and which can be said to have been disobeyed. There is no gainsaying that before a person can be cited for contempt, the applicant must demonstrate the existence of a clear, valid and unequivocal court order, whose terms are capable of commanding obedience by the adverse party. [see Mututika versus Baharini Farm Limited [1985] eKLR]. 30.The next issue for consideration is whether the applicant has established any act of willful disobedience or contempt of a lawful court order. Suffice it to state that the applicant herein was obligated to demonstrate not only the existence of a lawful court order directed against the alleged contemnor, but also the act/omission, which is contented to have breached the lawful court order. 31.Simply put, the applicant was obligated to demonstrate what the respondents were commanded to do, but which they have not done. On the other hand, it was also incumbent upon the applicant to demonstrate what the respondents have done, but which they were barred/prohibited from doing. In short, there must be an act or omission underpinning the contempt of court. 32.I have reviewed the application and the supporting affidavit, in an endeavor to discern the act complained of. Sadly, there is no act ; or omission that touches on and flows from the judgment of the court that can warrant citation and punishment for contempt of court. 33.Additionally, it is important to underscore that if [and I say if] the respondents have obstructed or barred the Land Registrar from undertaking his statutory duty or discharging the orders of the court, then the Land Registrar was obligated to lodge a complaint with the police pertaining to obstruction of justice; preventing a public officer from undertaking public duty or commission of such other cognizable offence in line with the Penal Code, Chapter 63 Laws of Kenya. 34.Notwithstanding, the forgoing, I wish to point out that the Land Registrar has not mounted any criminal complaints to the police; or even filed an affidavit to aver that same was blocked or barred from undertaking the designated exercise. 35.Notwithstanding the foregoing, I must state that there is no order that directed the respondent[s] to do or to restrain from doing any act, which can underpin the contempt proceedings. To my mind, the subject application and the allegations of contempt, have been mounted in vacuum. 36.Before concluding on this issue, it is important to highlight that the jurisdiction of the court to cite and punish for contempt, must be exercised sparingly; and with circumspection. The jurisdiction to punish for contempt must not be exercised for the mere asking or willy nilly. Moreover, it is trite and established that punishment for contempt can only be invoked as a last resort. [See Sheila Cassatt Issenberg & Watoto World Centre v Antony Machatha Kinyanjui [2021] KEHC 5692 (KRL)] 37.The last issue that falls for consideration is the reliefs [if any] which ought to be issued. The applicant has sought various reliefs. The reliefs include citation and punishment of the respondents for contempt and their committal to jail for a duration not exceeding six months. Nevertheless, while addressing issues numbers one and two above, I have found and held that there was no order that was directed against the respondents to underpin their citation. 38.The other relief that has been sought relates to an order directed against the OCS Maua police station to enforce compliance with the decree of the court and to provide security during implementation by the land registrar. I beg to state that what is before me is a civil matter. Insofar as the matter is civil in nature, the involvement of the police [if at all] must only be invoked in exceptional circumstances. [See Kamau Mucuha v Ripples Ltd [1993] eKLR 39.Other than the foregoing, it is also worthy to recall that the Land Registrar has since visited the locus in quo and prepared a report dated the 11.06.2025. For good measure, the report has been annexed to the subject application. Moreover, the report indicates that the applicant’s parcel of land was duly measured and it was ascertained that the portion occupied by the applicant is 0.0523 Ha, whereas the measurements on the area list is 0.05 Ha. 40.What is apparent from the report is that the applicant is occupying [sic] a portion that is slightly more than the acreage in the area list. However, it is not lost on me that the land measurements are never exact. On the contrary, land measurements are approximate. 41.Additionally, the report suggest that [sic] the disputed portion of land/area falls on parcel number 9336. I have not heard the applicant to complain about the said findings. It appears the applicant is comfortable. 42.Be that as it may, what is paramount is that the Land Registrar has since visited the locus in quo in compliance with the judgment of the court and thereafter generated a report. The report in question was to be filed before the magistrate’s court. Thereafter, the parties were to appear before the Magistrates court for ‘further directions’. 43.I am not privy to whatever “further directions” denote. However, I wish to underscore that further directions can only be pursued before the magistrate’s court and not before this court. Suffice it to state that this court is functus officio, having discharged its mandate by determining the appeal. [See the holding in Telcom Kenya Limited versus John Ochanda [suing on his own behalf and on behalf of 996 former employees of Telcom Kenya Limited] [2014] eKLR]. 44.Finally, I also wish to state that this court [differently constituted] set aside the judgment of the lower court on the basis of jurisdiction. In fact, the court [differently constituted] declared the judgement a nullity. However, there is the consequential order that the parties do revert to the trial court for further directions. 45.What is not clear to me, is the competence of the lower court to engage with the matter and to issue further directions [whatever the further directions mean]. It is equally not clear to me, whether the suit in the lower court is still alive, insofar as it was heard; judgment delivered; judgment appealed against; judgment set aside on appeal. The bottom line is that upon the delivery of the judgment by this court [differently constituted], the dispute between the parties was brought to a close; and same cannot be re-visited in the absence of an order remanding the matter for re-hearing. 46.However, I wish to state that the parties and their advocates are the best people to determine the way forward and [sic] the further directions, same may wish to procure from the trial court. 47.For me, the matter for consideration is the application dated 09.03.2026. I have already addressed the thematic issues thereunder. Furthermore, I have already reached certain finding[s]. Conclusion 48.It is the applicant who contended that the respondents had acted contrary to and in contravention of the judgment of this court. It was therefore incumbent upon the applicant to prove the assertions. Sadly, the assertions were not proven. The assertions remained at the level of allegations. 49.Contempt of court may culminate into a citizen losing his/her liberty. The applicant must therefore prove the assertion to the satisfaction of the court. Mere allegations cannot suffice. Final orders: 50.Flowing from the foregoing, it must have become apparent that the subject application is devoid of merits. The application clearly calls for Dismissal. 51.In the premises, the final orders that commend themselves to the court are:i.The Application dated 06.03.2026 be and is hereby Dismissed.ii.Cost of the Application be and are hereby awarded to the Respondents.iii.The costs in terms of clause [ii] above shall be agreed upon and in default be taxed in the conventional manner. 52.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 11TH DAYOF JUNE, 2026.OGUTTU MBOYA, FCIArb; CPM[MTI-EA]JUDGE.In the presence of-:Court Assistant: ZakayoMr. Gikunda Kiutha for the Applicant.Mr. Kurauka for the Respondents.