https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1387

Buxton Point Apartments Ltd & 2 others v Gele t/a Buxton Filling Station & 3 others (Civil Appeal E038 of 2023) [2026] KECA 1387 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1387 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E038 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Buxton Point Apartments Ltd 1st Appellant Hon Suleiman Shahbal 2nd Appellant Roton Construction Company Ltd 3rd Appellant and Abdullahi Ahmed Gele t/a Buxton Filling Station 1st Respondent Chief Officer, Land, Housing & Physical Planning County Government of Mombasa 2nd Respondent County Government of Mombasa 3rd Respondent The Chief Land Registrar 4th Respondent (Appeal against the Ruling/Order of the Environment and Land Court at Mombasa (Naikuni, J.) delivered on 27th March 2023 in Mombasa Environment and Land Petition No. 44 of 2021) Judgment 1.By a Petition dated 5th October 2021, Abdullahi Ahmed Gele t/a Buxton Filling Station, the 1st Respondent, instituted proceedings in the Environment and Land Court at Mombasa against the Appellants, Buxton Point Apartments Ltd, Hon. Suleiman Shahbal, Roton Construction Co. Ltd, and the 2nd to 4th Respondents, the County Government of Mombasa, the Chief Land Registrar and the Attorney General. The 1st Respondent challenged the alleged unlawful demolition, fencing, excavation and redevelopment of premises known as Buxton Filling Station situate on parcel No. Mombasa/Block XVII/1443 (the suit property), which he claimed to lawfully occupy and operate as a petrol station. Together with the Petition, he filed a Notice of Motion dated 5th October 2021 under a Certificate of Urgency seeking conservatory orders restraining the Respondents from demolishing, destroying, digging, constructing or in any way interfering with the suit property, and seeking access to remove fuel tanks and pumps. 2.The application was certified urgent on 6th October 2021 and, on 27th October 2021, the Court issued interim orders directing that the status quo be maintained, meaning no construction, alienation, or subdivision was to take place on the suit property pending mention of the matter. Those orders were later extended on 1st December 2021. 3.The 1st Respondent subsequently contended that, despite service and knowledge of the orders, the Appellants and the 2nd to 4th Respondents continued fencing off the land, digging and undertaking construction works in disregard of the court’s directions. As a consequence, he filed a Notice of Motion dated 4th February 2022 seeking to have various officers and directors associated with the Appellants and the 2nd to 4th Respondents cited for contempt of court for disobedience of the orders issued on 27th October 2021 and extended on 1st December 2021 (the status quo orders). The contempt application brought under Order 40 Rule 3, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B, 3, and 3A of the Civil Procedure Act, sought orders that:“a)… spent.b.That this Honorable Court be pleased to find one, The Chief Officer Department of Lands, Housing and Physical Planning, Ms. Rose Mbatia Munupe, H.E The Governor Hassan Ali Joho, the Directors of the 4th Respondent Mr. Suleiman Said Shahbal and Akram Aivy Ahmed Badawy, the Directors of the 6th Respondent Mr. Yasin Noor Mohamed Noor, Omar Karaceli, Ahmed Karaceli and Martin Mbugua Kariuki respectively in contempt of this Honorable court orders dated 27th October 2021 and 1st December 2021.c.That upon grant of prayer (2) above, this Honorable Court be pleased to impose the penalty of a hefty fine on the Chief Officer, Department of Lands, Housing and Physical Planning, Ms. Rose Mbatia Munupe, H.E The Governor Hassan Ali Joho, the Directors of the 4th Respondent Mr. Suleiman Said Shahbal and Akram Aivy Ahmed Badawy, the Directors of the 6th Respondent Mr. Yasin Noor Mohamed Noor, Omar Karaceli, Ahmed Karaceli and Martin Mbugua Kariuki herein found guilty under Kshs. 20 million for each count of contempt.d.That upon grant of prayer (3) above this Honorable Court to issue an order that the said 1st Respondent, The Chief Officer Department of Lands, Housing and Physical Planning, Ms. Rose Mbatia Munupe, H.E The Governor Hassan Ali Joho, the Directors of the 4th Respondent Mr. Suleiman Said Shahbal and Akram Aivy Ahmed Badawy, the Directors of the 6th Respondent Mr. Yasin Noor Mohamed Noor, Omar Karaceli, Ahmed Karaceli and Martin Mbugua Kariuki committed to civil jail for a period not exceeding six (6) months for disobedience of the court orders dated 1st October 2021.e.That the said contemnors Ms. Rose Mbatia Munupe, Hon. Hassan Ali Joho, Mr. Suleiman Said Shahbal, Ahmed Aivy Ahmed Badawy, Mr. Yasin Noor Mohamed Noor, Omar Karaceli, Ahmed Karaceli and Martin Mbugua Kariuki herein do personally meet the costs of this application”. 4.The motion was supported by the affidavit of Abdullahi Ahmed Gele sworn on 24th February 2022, who deponed that, in an application dated 5th October 2021, the 1st Respondent had sought injunctive orders; that, on 27th October 2021, the court issued interim orders; that order No. 5 was to the effect that the status quo on the suit premises was to be maintained , meaning nothing – construction, alienation and/or subdivision - takes place on it until 1st December 2021; that, thereafter, the court extended the orders on 1st December 2021 stating that the status quo be maintained. 5.It was the 1st Respondent’s case that the orders were served on the Appellants and the 2nd to 4th Respondents on 28th November 2021 and 3rd December 2021. However, the Appellants and the 2nd to 4th Respondents 4.proceeded to fence off, dig up and commence construction in breach of the court orders; that the construction works interfered with the suit premises notwithstanding the existence of the court orders; and that, for the said reason, the 1st Respondent was praying that the court finds the Appellants and the 2nd to 4th Respondents to be in contempt of the court’s orders. 6.The application was opposed through replying affidavits of Ahmed Alwy Ahmed Badawy, a director of the 2nd Appellant, sworn on 28th March 2022 on behalf of the Appellants, where it was deponed that parcel No. Mombasa/Block XVII/1443 did not exist, having been cancelled together with other allegedly irregular leases and consolidated into parcel No. Mombasa/Block XVII/1819. They further contended that all development activities were being undertaken on parcel No. Mombasa/Block XVII/1821 pursuant to a lawful lease and joint venture arrangement for affordable housing, and that such activities had commenced before the issuance of the status quo orders; that further, the 1st Respondent had not brought a land surveyor’s report demonstrating that the developments were taking place on the 1st Respondent’s parcel No. Mombasa/Block XVII/1443; and that, therefore, the court cannot hold the Appellants’ in contempt as it has not been proved that the developments were on the 1st Respondent’s parcel of land. It was also contended that contempt proceedings, being quasi-criminal in nature, required strict proof, which standard had not been satisfied. 7.The 1st Respondent filed a further affidavit reiterating that he had been in lawful occupation of the premises; and that the Appellants had stormed and fenced off the property in September 2021, demolished the petrol station, and continued construction even after issuance of the court orders. He maintained that the conduct of the 2nd to 4th Respondents, together with the Appellants, amounted to deliberate defiance of the authority of the court. 8.On 9th May 2022, while the contempt application was pending, the court delivered a ruling on the application dated 5th October 2021 and granted conservatory orders restraining the Respondents from further demolishing, digging, constructing or interfering with the suit premise pending hearing of the Petition. The 1st Respondent was also granted access to remove fuel tanks and pumps from the suit premises. The court further held that certain officials sued in their personal capacities were not proper parties and struck out their names from the Petition. 9.Thereafter, the contempt application dated 4th February 2022 was canvassed by way of written submissions and, in a Ruling delivered on 27th March 2023, the trial court sought to determine three issues, which are: a. whether the Notice of Motion application dated 4th February, 2022 by the 1st Respondent met the threshold for finding the Appellants and the 2nd to 4th Respondents in breach of the Court orders issued on 27th October, 2021 and 1st October, 2021 respectively; b. whether the Appellants and the 2nd to 4th Respondents should be committed for disobedience of Court orders; and c. who will bear the costs of the application. 10.In determining the first issue, the learned Judge set out the parameters for reaching a finding of contempt of court, and subsequently went on to find that there were outstanding questions yet to be answered on whether contempt of the court orders was established. In addressing the second issue, instead of determining whether the Appellants and the 2nd to 4th Respondents should be committed for being in disobedience of the status orders, the Judge dwelt on the question of “Whether the Notice of Motion application dated 15th February, 2022 by the Respondent/Applicant herein meets the fundamental threshold of breach of Contempt of Court by the Appellant?” 11.In determining this issue, the learned Judge reached a finding that the Appellants and the 2nd to 4th Respondents were aware of the court orders; that there was disobedience of the orders, and that the “Respondents” were indeed entitled to all the remedies sought in their application. 12.The above finding notwithstanding, the learned Judge partially allowed the contempt application and issued the following orders:“a.That the Notice of Motion application dated 4th February 2022 is hereby partially allowed with no orders as to costs.b.That Summons are hereby issued to the 3rd, 4th, 5th and 6th Respondents to physically and personally appear before Honorable Court on 22nd May, 2023 for an explanation as to the status of their compliance with the orders issued on 9th May 2022.c.That for the sake of expediency, the Petition to be heard by way of both viva voce evidence and affidavits on 2nd October, 2023. There be a mention on 22nd May, 2023 for further direction on how to proceed on with this matter.d.That an order be and is hereby made that there shall be conducted a Site Visit on site pursuant to the provisions of Order 18 Rule 11 of the Civil Procedure Rules, 2010. For good orders the following to happen:-i.The parties to ensure that there is adequate arrangement on security to be provided for by the offices of the County Commander of Police Coast, Region.ii.The matter to be mentioned at 9.30 am through Virtual means.e.That the Costs of the application dated 4th February, 2022 to be in the cause”. 12.Aggrieved by that Ruling, the Appellants lodged the present appeal raising the grounds that the learned Judge was in error in law and fact:i.in issuing summons to the Appellants to physically and personally appear before the court on 22nd May 2023 for an explanation as to the status of compliance with the orders issued on 9th May 2022 without making a conclusive finding that in the ruling dated 27th May 2023 that they were indeed in contempt of the orders dated 27th October 2021.ii.in issuing summons to the Appellants to physically and personally appear before the court on 22nd May 2023 for an explanation as to the status of compliance with the orders issued on 9th May 2022 despite the fact that the 1st Respondent in his application for contempt sought for the Appellants to be cited for contempt of the interim orders dated 27th October 2021 which orders were not extended on 10th February 2022 hence their lapse on the said date.iii.in issuing summons to the Appellants to physically and personally appear before Court to show cause why no action should be taken against them for breach of the orders dated 9th May 2022, 27th October 2021 and 1st December 2022 despite the fact that the orders were not clear and unambiguous.iv.in issuing summons to the Appellants to physically and personally appear before court to show cause why no action should be taken against them for being in breach of the orders dated 9th May 2022, 27th October 2021 and 1st December 2022 despite the fact that the 1st Respondent failed to prove the fact that the Applicants constructions were being done on his parcel of land, Mombasa/Block/XVII/1443 and when no express order had been issued against developments and constructions on the 1st Appellant’s Plot No. Mombasa/Block/XVII/1821.v.in issuing summons to the 1st and 2nd Appellants who despite being the owner of the previous sublet of the developments had nothing to do with the construction and development activities on the premises because there was a known constructor on site.vi.in issuing summons against the 2nd Appellant in person when it was indeed clear that the project was actually being undertaken by the 2nd Respondent and when no satisfactory proof had been established that the 2nd Respondent was in any way concerned or connected to the 1st Appellant. 13.When the appeal came up for hearing on a virtual platform, learned counsel Ms. Thuku appeared for the Appellants, while learned counsel Mr. Abdi Aziz appeared for the 1st Respondent and learned counsel Ms. Oloo appeared for the 2nd and 3rd Respondents. There was no appearance for the 4th respondent though served. 14.In their written submissions, counsel for the Appellants submitted that the appeal arises from the exercise of discretion by the Environment and Land Court, and that this Court is entitled to interfere where the trial court misdirected itself in law or fact, misapprehended the evidence, took into account irrelevant considerations, failed to consider relevant matters, or reached a plainly wrong decision. The cases of Mrao vs First American Bank of Kenya Ltd & 2 Others [2003] KLR; Global Vehicles Kenya Limited vs Lenana Road Motors [2015] eKLR; and Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982–1988] 1 KAR 218, were relied upon for the proposition that, on a first appeal, the Court has a duty to re-appraise the evidence, reassess it, and draw its own conclusions. 15.Counsel submitted that the central issue for determination is whether the learned Judge erroneously found that the Appellants were in contempt of the status quo orders issued on 27th October 2021 and 1st December 2021. It was submitted that contempt of court is quasi-criminal in nature and must be strictly proved by the party alleging it. In support of this submission, counsel relied on the case of Mutitika vs Baharini Farm Ltd [1985] KLR for the proposition that contempt being of a criminal character must be proved to a standard higher than a balance of probabilities, though not exactly beyond reasonable doubt, and that the jurisdiction to punish for contempt must be exercised with great caution and restraint. 16.It was further submitted that, for a party to be cited for contempt, there must be proof of the existence of a valid court order that was clear, unambiguous and binding, proof of service or personal knowledge of the order, and proof of willful and deliberate disobedience; that, in the present case, the interim status quo orders issued on 27th October 2021 lapsed on 10th February 2022 when they were not extended, and that, therefore, there were no subsisting orders capable of being breached. In this regard, reliance was placed on the case of Vine Pack Limited vs Milly Glass Works Limited [2020] eKLR, where the court held that lapsed orders cannot found a contempt application; and on the case of Diplomatic Duty Free Ltd vs Attorney General & Another [2012] eKLR, where it was held that contempt proceedings cannot be sustained on the basis of orders that had expired and were not extended. 17.On the issue of service and knowledge of the alleged orders, counsel submitted that the 1st Respondent failed to demonstrate that the Appellants were personally served with, or had knowledge of, the status quo orders. The case of Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui [2021] eKLR was relied upon to emphasize that contempt requires proof of willful and deliberate disobedience, which cannot be established unless the contemnor had knowledge of the order through service or otherwise. 18.Counsel further submitted that the orders alleged to have been breached were not clear, unambiguous or unequivocal, particularly with regard to the specific parcel of land to which they applied. In support of this argument, reliance was placed on the case of Carey vs Laiken [2015] SCC 17, as cited in Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR) where it was held that an order must clearly and unequivocally state what is required or prohibited, failing which a party should not be punished for contempt. 19.On alleged disobedience, it was submitted that the 1st Respondent failed to prove that the construction complained of was undertaken on the concerned suit parcel during the pendency of the status quo orders, or that the Appellants willfully disobeyed them. Also challenged was the admissibility of the photographic evidence relied upon by the 1st Respondent in that it failed to meet the requirements of Section 106B of the Evidence Act. 20.In conclusion, the Appellants urged this Court to set aside the impugned ruling on the basis that contempt including proof of willful and deliberate violation of a court order were not proved to the requisite standard. 21.On their part, counsel for the 1st Respondent submitted that the appeal before this Court arises from contempt proceedings, which go to the very root of the administration of justice and the authority of courts; and that the 1st Respondent’s application before the Environment and Land Court sought to have the Appellants cited for contempt of court for willful disobedience of the status quo orders and thereafter confirmed by the Ruling dated 9th May 2022. It was argued that the orders were clear, unequivocal, and binding, having expressly directed that the status quo be maintained on the suit property, meaning that no digging, construction, alienation, or subdivision was to take place; that the orders were extracted, served upon the Appellants and their advocates, were extended in open court, and were to remain in force until determination of the 1st Respondent’s Petition. 22.The 1st Respondent further submitted that, despite having full knowledge of the subsisting court orders, the Appellants, acting through their proxies, contractors and agents, continued with massive construction works on the suit property in blatant disregard of the orders of the court. It was contended that the learned Judge correctly found that the Appellants’ conduct demonstrated willful disobedience and contempt, warranting the summons issued against them to show cause why they should not be punished. 23.On the meaning and effect of a status quo order, the 1st Respondent urged the Court to be guided by the case of Shimmers Plaza Ltd vs National Bank of Kenya [2015] eKLR, where this Court held that “status quo” refers to the prevailing state of affairs at the time the order is made, and that parties are obliged to preserve that state without undertaking acts that would alter it. The case of Thugi River Estate Ltd & Another vs National Bank of Kenya & 3 Others [2015] eKLR was relied on for the proposition that a status quo order operated as a conservatory measure meant to preserve the existing state of affairs pending determination of a dispute. 24.It was submitted that the Appellants’ argument that the orders had lapsed or were ambiguous was untenable, as the trial court expressly reaffirmed the status quo orders in its Ruling dated 9th May 2022; and that the Appellants could not purport to unilaterally interpret the orders as having lapsed or were unenforceable while continuing with construction and, if they were in doubt, they ought to have sought clarification or variation of the order from the court. In this regard, the case of Hadkinson vs Hadkinson [1952] 2 All ER 567 was cited for the proposition that it is the unqualified obligation of every person against whom an order is made to obey it unless and until it is discharged, while the case of Chuck vs Cremer [1846] 1 Coop Temp Cott 342 was relied upon for the proposition that a party who believes an order to be irregular must still obey it until it is set aside. 25.The 1st Respondent also submitted that knowledge of a court order supersedes personal service, and that the Appellants’ presence in court through their respective counsel, coupled with their subsequent conduct, demonstrated actual knowledge of the orders issued on 27th October 2021 and confirmed on 9th May 2022. Counsel relied on the cases of Shimmers Plaza Ltd vs National Bank of Kenya [2015] eKLR; and Basil Criticos vs Attorney General & 7 Others [2012] eKLR for the position that, where a party has knowledge of a court order, personal service is not a strict requirement for contempt proceedings. 26.In conclusion, counsel for the 1st Respondent submitted that the learned Judge properly exercised his discretion in finding the Appellants in contempt, and in issuing the consequential orders. 27.This is a first appeal where this Court is required to review matters of both fact and law and come to its own independent conclusions. In doing so, it should not interfere with the findings of fact by the trial court unless they were based on no evidence, on a misapprehension of the evidence, or unless the trial Judge is shown demonstrably to have acted on wrong principles in reaching his findings. See Selle vs Associated Motor Boat Co. Limited [1968] EA 123. 28.Having considered the Memorandum and Record of appeal, the rival submissions and the applicable law, the issues falling for determination are: i) whether contempt of court in respect of the Notice of Motion dated 4th February 2022 was established; and ii) whether the learned Judge properly exercised his discretion in issuing further orders summoning the Appellants to personally appear before court to explain compliance with the orders of 9th May 2022. 29.According to Black’s Law Dictionary (Ninth Edition), contempt of court is “conduct that defies the authority or dignity of a court. Actions amounting to contempt of court are quasi-criminal in nature, and in punishing for contempt the court exercises ordinary criminal jurisdiction”. 30.In the case of Stewart Robertson vs Her Majesty’s Advocate, [2007] HCAC 63, it was held that:“Contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.” 31.Currently, the statutory basis of contempt of court is Section 5 of the Judicature Act, which provides that:“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.” 32.In the contempt application dated 4th February 2022, the 1st Respondent sought orders, in summary for:i.a declaration that named senior officers of the County Government of Mombasa, including the Chief Officer for Lands, Housing and Physical Planning, the Governor of Mombasa, and directors of the 4th and 6th Respondents, were in contempt of court orders issued on 27 October 2021 and 1 December 2021;ii.the imposition of hefty fines against the said contemnors;iii.committal of the contemnors to civil jail for a period not exceeding six months; andiv.an order that the contemnors personally bear the costs of the application. 33.In other words, the application before the trial court sought for a finding that the Appellants and the 2nd to 4th Respondents were in contempt of the status quo orders issued on 27th October 2021 and extended on 1st December 2021, and that what the trial court was required to determine was whether the 1st Respondent proved the essential components of contempt, namely, the existence of a valid and binding court order, knowledge of the orders, and deliberate disobedience of the orders by the Appellants. 34.In the case of Wekesa & 2 Others vs Munialo [2025] KECA 679 (KLR), this Court approved the ingredients of contempt as outlined by Mativo, J. (as he then was) in the case of Samuel M. N. Mweru & Others vs. National Land Commission & 2 Others [2020] eKLR thus:“It is an established principle of law 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. 35.Upon proof of these requirements, the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. 36.Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand, who succinctly stated: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; andd.the defendant's conduct was deliberate.” 37.In the case of Langat & 2 others (Suing as the officials of the 343 members of Koita Welfare Self Help Group) vs Kericho County Secretary & 12 others (Civil Appeal (Application) E142 of 2022) [2026] KECA 601 (KLR), this Court held that:“Contempt proceedings being quasi-criminal in nature, the standard of proof required is higher than in civil cases. The alleged contemnor is entitled to the protection of al safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear-cut case of willful and intentional obstruction of administration of justice. The case should not rest only on surmises and conjectures. A question whether there is contempt of court or not is a serious one. It behooves the Court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. The power to punish for contempt is a powerful weapon that should be exercised with utmost care and caution.” 38.In the case of Micheal Sistu Mwaura Kamau vs Director of Public Prosecutions & 4 others [2018] KECA 359 (KLR), it was held that:“It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of. That is made absolutely clear by section 4 of the Contempt of Court Act and the ruling of the Supreme Court in Republic v Ahmad Abolfathi Mohammed & Another (supra).Secondly, as this Court emphasized in Jihan Freighters Ltd v Hardware & General Stores Ltd and in A.B. & Another v R. B. [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. (See Mutitika v. Baharini Farm (supra) and Republic v Ahmad Abolfathi Mohammed & Another (supra).” 39.In ascertaining whether the learned Judge found that the conditionalities for contempt were met, we begin by considering whether there were orders of status quo in existence. The Record shows that the court issued an order on 27th October 2021 that was in the nature of interim status quo orders. In particular Order No. 5 specified:“That there is need to preserve the suit premises by ensuring that the status quo is maintained meaning nothing -construction, alienation and/or subdivision takes place on it until 1.12.2021.” 40.The order was thereafter extended on 1st December 2021. 41.A “status quo” order is defined by the Black’s Law Dictionary, Butterworths 9th Edn, as “the situation as it exists”. 42.In the case of Ubora Housing Co-operative Society Ltd vs Tripple Two Properties Ltd & 7 others (Civil Application E244 of 2021) [2023] KECA 675 (KLR), this Court define ‘status quo’ as:“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. All it meant was that everything remains as it was as at the time that the order was made.” 43.In the case of Mukuha vs Gashwe & 14 others (Civil Application E064 of 2023) [2023] KECA 1482 (KLR), this Court held that:“In essence therefore, a status quo order is meant to preserve the subject matter as it is or as it existed, as at the day of making the order. A status quo order is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention. By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed before the court renders its decision on the matters in issue.” 44.It cannot therefore be disputed that there were status quo orders in respect to the suit premises. 45.Next, we turn to the question of whether the parties had knowledge of the orders. The Ruling discloses that, in determining this issue, the learned Judge took into account a Notice of Motion application dated 15th February, 2022. This is what the learned Judge said:“In order to find out whether the application was merited, three quick important points need to be considered first: was there an order to be obeyed? If so, was it served? If the answer to the two is in the affirmative, was it obeyed? As I stated in the introduction to this ruling, the Application relates to alleged disobedience of a court order issued on 13th October, 2021. The Applicant asked this Court to cite the Appellant/ Respondent for contempt of the order. The order was issued in the interim and the Court directed that the matter was to be mentioned on 15th November, 2021. The orders were to be in place from the date of issue to 15th November, 2021 when they were extended again for Seven (7) days.In my own view, I discern that indeed the Respondents who had their Advocates present on the two occasions when these orders were made were fully aware of the said orders. Thus, the argument of them not having any knowledge of the orders of this Court would not only be deceit, unfounded but also mischievous to say the least. Having stated that, the other issues to be determined was whether the Respondents deliberately disobeyed these orders issued by the Honorable Court.” 46.The court concluded:“From the foregoing, it is trite that contempt of court proceedings and applications are subtle and criminal in nature and would impose criminal sanctions if a conviction followed. I find that the Appellant/Respondent defied orders of this Court despite having knowledge of the said orders. The Respondents are indeed entitled to all the remedies sought from their application”. 47.An examination of the above excerpt shows that the Notice of Motion of 15th February 2022 considered by the learned Judge was not in any way related to the application dated 4th February 2022 that was before him. This is apparent because the application dated 15th February 2022 related to “…alleged disobedience of a court order issued on 13th October, 2021,” which were to be in place from the “…date of issue to 15th November, 2021 when they were extended again for Seven (7) days.” In effect, the learned Judge wrongly considered an application that had nothing to do with the application that was before him and, in so doing, went on to erroneously find that the Appellants were in contempt. 48.When these glaring discrepancies are considered alongside the application dated 4th February 2026, and the question of whether the Appellant and the 2nd to 4th Respondents had knowledge of the orders, there is no doubt that the Judge considered extraneous matters that were not before him and, after so doing, wrongly concluded that the Appellants and the 2nd to 4th Respondents had knowledge of the unrelated order that had no bearing on the matter before him. 49.Having based the finding on the question of whether the Appellants and the 2nd to 4th Respondents had knowledge of the concerned orders on the wrong application and order, it cannot then be said that the learned Judge correctly concluded that the Appellants and the 2nd to 4th Respondents had knowledge of the status quo orders. 50.With respect to the criteria of whether the Appellants and the 2nd to 4th Respondents were in disobedience of the status quo orders, the trial court held:“By virtue of determining the application dated 5th October 2021, the court essentially disposed with the orders issued on 27th October 2021 and 1st December 2021. Basically, the orders which were said to be in contempt, were interim in nature, and were granted by court pending the hearing and determination of the main application dated 5th October 2021. From the pleadings, there are a few issues that need to be critically assessed. For instance, the Respondents have ably argued that the application was determined by court on 9th May 2022 and the orders dated 27th October 2021 and 1st December 2021 were no longer in force, since they were issued pending the hearing and determination of the main application”.Further, the court stated:“It is imperative and invariable that court orders have to be followed and complied with. To ensure that this is done, the Court has powers to summon the Respondents to show cause as to the status of their compliance with the orders issued on 9th May 2022. This was quite important as this Court had directed the parties to prepare for a site visit to the suit property. There are numerous issues that all the parties have raised in their pleadings, and this Court would wish to undertake further interrogation before arriving at a conclusion as to whether there was disobedience of the Court orders or not. It is for these reasons that this Honourable Court is of the view that the Respondents be summoned to Court to issue a detailed explanation as to their compliance before the said site visit can take place.” 51.An in-depth analysis of the above excerpts discloses that, while addressing this criteria, the Judge deviated from determining whether the Appellants and the 2nd to 4th Respondents were in disobedience of the status quo orders and instead sought to determine whether they were in contempt of the Ruling of 9th May 2022 that arose from the main application dated 5th October 2021. The learned Judge was of the view that, since the 1st Respondent’s assertions were that the orders issued on 9th May 2022 were violated, the Appellants and the 2nd to 4th Respondents ought to be summoned to court to explain whether or not there was compliance with the Ruling and orders of 9th May 2022. 52.As concerns the question of disobedience and whether the learned Judge rightly concluded that contempt was established, our examination of the Ruling and the ensuing orders discloses significant and fundamental defects in the learned Judge’s findings. Firstly, on whether there was disobedience of the status quo orders, the Judge reached two incongruent findings. On the one hand, the Judge found as of fact that the Appellants and the 2nd to 4th Respondents were in contempt having acted in defiance of the court orders. We have since found that that finding was based on the erroneously included application. On the other hand, being dissatisfied because the all-important question of whether the Appellants and the 2nd to 4th Respondents had in fact disobeyed the status quo orders remained unanswered, the Judge ordered that the parties provide further clarification on compliance with the orders, hence the conclusion that the application partially succeeded. It becomes apparent that the learned Judge appreciated that factual questions on whether the alleged construction took place after issuance of the orders remained unresolved; that, additionally, there was the question of whether the activities complained of occurred on the suit premises covered by the orders, and whether there had in fact been a breach of those orders. Given the uncertainty, it clearly begs the question as to whether indeed contempt was established at all. 53.For our part, the record does not lead us to conclude that contempt was established. We say this because the pleadings and evidence were distinctly vague and inconclusive. There was nothing that pointed with any level of certainty to defiance of the status quo orders by the Appellants and the 2nd to 4th Respondents. In addition, the trial court’s finding is clear that, “… further interrogation before arriving at a conclusion as to whether there was disobedience of the Court orders or not…,” was necessary. And, on the basis of this finding, the learned Judge issued coercive orders requiring the Appellants and the 2nd to 4th Respondents to personally appear before court to explain their compliance with the orders or not, which was an error on the learned Judge’s part. In the absence of material demonstrating disobedience, the learned Judge should have concluded that the allegations of contempt of court were not proved to the required standard, and the proper course would have been to dismiss the application. 54.When the totality of what we have said above is taken into account, there can be no question that it was not demonstrated that the conditionalities for a finding of contempt were established. As a consequence, we find that the learned Judge reached the wrong conclusion that the Appellants’ and the 2nd to 4th Respondents were wholly or partially in contempt of the status quo orders of 27th October 2021 and 1st December 2021. 55.This then leads us into the next issue of whether the learned Judge properly exercised his discretion in issuing further orders summoning the Appellants and the 2nd and 4th Respondents to personally appear before court to explain compliance with the orders of 9th May 2022. As is evident from the observations above, the learned Judge deviated from ascertaining whether or not the status quo orders were disobeyed. Rather, the court sought to determine whether the Appellants and the 2nd to 4th Respondents were in contempt of the court orders of 9th May 2022. At this juncture, we hasten to point out that what was before him was the application of 4th February 2022 that was concerned with disobedience of the status quo orders. The deviation from determining whether the status quo orders were disobeyed to ascertaining whether the orders of 9th May 2022 were disobeyed, gave rise to a fundamental misdirection on the part of the learned Judge. 56.It was held in the case of Kenya Airports Authority vs Mitu Bell Welfare Society & 2 others [2016] eKLR while citing Malawi Railways Ltd vs Nyasulu [1998] MWSC 3 that:“As the parties are adversaries, it is let to each one of them to formulate his case in his own way, subject to the basic rules of pleadings...for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings.Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice...In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called 'Any Other Business" in the sense that points other than those specific may be raised without notice”. (emphasis ours) 57.In the case of M N M vs D N M K & 13 others [2017] KECA 172 (KLR), this Court faulted the trial Judge for failing to determine a specific, material issue pending before the court. The court held that omitting to make definitive findings on live questions validly brought before a judge prevents the proper administration of justice and keeps disputes unnecessarily unresolved. 58.Bearing the above cited authorities in mind, it is distinctive that the learned Judge misconstrued the issue that was before him. Whether or not there was contempt of the Ruling of 9th May 2022, or whether further investigations should be undertaken or additional explanations sought were not matters that were before the learned Judge. So that, in deviating from determining the application dated 4th February 2022 with respect to whether the status quo orders were defied to determining whether the Ruling of 9th May 2022 was defied, was a misdirection. It becomes clear that, the learned Judge took into account matters that he ought not to have considered with the result that he arrived at the wrong conclusion. Accordingly, we find it necessary to interfere with that decision. 59.In sum, the appeal is merited and is hereby allowed. The Ruling and orders dated 27th March 2023 are hereby set aside and, instead, substituted for an order dismissing the Notice of Motion dated 4th February 2022. The Appellants shall have the costs of the application in the Environment and Land Court as well as the costs of this appeal.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A.K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb FCIArb.………………………………JUDGE OF APPEALG.W. NGENYE-MACHARIA…………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR