https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/755

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **ELC CASE NO. E009 OF 2026** **JOHN MWITA CHACHA…….……………………PLAINTIFF/APPLICANT** **VERSUS** **PETER MAGOIGA WAISI……………………DEFENDANT/RESPONDENT** **RULING** 1. The plaintiff filed a notice of motion dated 12th August, 2026 seeking for the following orders: 2. THIS Honourable Court to cite the respondent for contempt of the court order issued on 7th August, 2026, and find him in contempt having deliberately and unlawfully disobeyed the injunctive order by burying, interring or causing the burial of the remains of the deceased ELIA BOKE on the disputed subject suit property NYABASI/BOMERANI/2828 pending inter-partes hearing of the application dated 7th August, 2026 3. THIS Honourable Court do commit the respondent to a civil jail for a period not exceeding six (6) months for contempt of court order. 4. THE respondent be ordered and/or compelled at his own cost, to exhume and remove the remains of the late ELIA BOKE, from the disputed subject suit property NYABASI/BOMERANI/2828 and restore the disputed subject property to the position it was prior to the unlawful burial. 5. Any other relief this Honourable court may deem fit and just to grant. 6. The application is based on the grounds on the face of the application and the supporting affidavit sworn by the plaintiff on 12/8/2026. The grounds are that the court issued an interim order injunction on 7th August, 2026 preserving the status quo of the disputed subject property NYABASI/BOMERANI/2828, pending the interpartes hearing of the said application dated 7/8/2026. The plaintiff’s counsel served the respondent’s counsel on record with the said order together with the application, via both email address and whatsApp as evidenced by affidavit of service annexed and marked “JMC-2” 7. That despite proper service and knowledge of the court order, the respondent completely refused and wantonly ignored to comply with the said order, and went ahead to bury the deceased ELIA BOKE on the subject suit property before the interpartes hearing slated for 12th August, 2026. That the matter is still pending in court and no burial ought to have happened on the dispute subject matter until the matter is fully heard and determined. That the court orders are not made in vain. That the respondent’s acts are wilful, intentional and/or deliberate and actuated by malice in disregarding the court order that was issued to conserve and preserve the disputed subject suit property. 8. Counsel for the plaintiff informed the court on 17/8/2026 that she had been served with a replying and when the matter proceeded orally for hearing of the application dated 12/8/2026 counsel for the defendant said that he is relying on the replying affidavit. I have combed through the CTS and physical file but have not seen the said replying affidavit. His submissions lack foundation and cannot be relied on. This means that the only submissions and affidavit on record and which shall be relied on is that of the plaintiff. The counsel for the plaintiff submitted that the plaintiff’s counsel was served with the order meaning the defendant had knowledge of the order and was aware of the same. She submitted that the order was very clear on what the respondent was supposed to do. 9. The defendant was cross examined and admitted that he was served with the order but it was late. He was served on 9/8/2026 at noon and the deceased was buried on 10/8/2026 **Determination** 1. It is trite law that orders made by a properly constituted court of law must be obeyed. In the case of**HADKINSON – VS – HADKINSON [1952] ALL ER**it was held: - **“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”** 1. Nearer home, in the case **of ECONET WIRELESS KENYA LTD – VS – MINISTER FOR INFORMATION OF KENYA & ANOTHER [2005] eKLR**, the Court relying on the decision of the **Court of Appeal** in **GILLAB CHAND PUPATLAL SHAH & another – vs - ……….Civil Application No. 39 of 1990 stated that:-** **“It is essential for the maintenance of the Rule of Law and order that the authority and dignity of our courts are upheld at all time. The Court will not condone deliberately disobedience of its orders and will not shy away from its responsibilities to deal firmly with proved contemnors.”** 1. Finally, on the point in **TEACHERS SERVICE COMMISISON – VS – KENYA UNION OF TEACHERS & 2 OTHERS [2013]eKLR** the court stated as follows: - “**The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law**. **A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed”.** **“A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”** 1. In order to succeed on an application for contempt of Court the Applicant must satisfy the court of the following:- **a) That the terms of the order are clear and unambiguous and are binding on the Defendant.** **b) That the Defendant has knowledge of or proper notice of the terms of the order.** **c) The Defendant has acted in breach of the order.** **d) The Defendant’s conduct is deliberate.** 1. Contempt proceedings are *quasi–criminal* in nature and the penalty may involve a loss of liberty for the contemnor. In the circumstances, the legal standards required to prove contempt are higher than that required in civil cases but lower that the standard required prove to a criminal cases**. In KATSURI LTD – VS KAPURCHAND DEPAR SHALI [2016] eKLR** the Court held thus:- **“The courts take the view that where the liberty of the subject is, or might be involved, the breach for which the alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved -------- it must be higher than proof on a balance of probability, almost but not exactly, beyond reasonable doubt.”** 1. There is no doubt that the court orders issued by the **Court** on **7th August, 2026** were both clear and unambiguous. The orders stated in plain and simple language what was required of the parties herein. The respondent was required not to bury the deceased ELIA BOKE on the disputed subject parcel NYABASI/BOMERANI/2828 pending interpartes hearin. 2. From the record it is clear that the orders were communicated to the Respondent. The respondents had knowledge of them as the same were served upon his counsel. The respondent was also served on 9th August, 2026. In the circumstances, I am satisfied that the respondent had knowledge of the said orders as he was served. 3. Has the respondent acted in breach of the said orders deliberately? The orders made on 7th August, 2026 was to the effect that the application was certified urgent. Secondly an interim order of injunction was issued restraining the respondent either by himself, agents, servants and/or any other person acting under his instructions from burying, interring or causing the burial of the deceased ELIA BOKE on the disputed subject suit property NYABASI/BOMERANI/2828 pending interpartes hearing. Thirdly the OCS Kegonga Police Station to supervise and ensure compliance with the orders. Fourth the application be served for interpartes hearing on 12/8/2026the parties to share the costs of the exercise. 4. It is the second order that the plaintiff is complaining that the defendants disobeyed. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved -------- it must be higher than proof on a balance of probability, almost but not exactly, beyond reasonable doubt as held in the case of **KATSURI LTD – VS KAPURCHAND DEPAR SHALI (supra).** 5. The evidence on record from the cross examination of the defendant, it clear that he served with the orders in question on 9/8/2026, meaning he was aware of the same. The defendant went on to bury the deceased on the dispute suit parcel despite having knowledge of the orders stopping the burial. I find that the defendant’s actions were in breach of the orders issued on 7/8/2026 and his actions were deliberate as he was aware of the orders stopping the burial. The defendant was served in good time before the burial day and he was under duty to obey the court orders as they were binding on him. If he was dissatisfied with the said orders he would applied to the court to have the same set aside, vacated and varied. The defendant has not demonstrated that he is willing and ready to purge the contempt. 6. In conclusion I find that the plaintiff has been able to discharge the burden of proof which is higher than proof on a balance of probabilities. In the end I find that the plaintiff’s application dated 12th August, 2026 has merits and hereby allow the same in the following terms: 7. The respondent is hereby found to be in contempt of the court order issued on 7th August, 2026, having deliberately and unlawfully disobeyed the injunctive order by burying, interring or causing the burial of the remains of the deceased ELIA BOKE on the disputed subject suit property NYABASI/BOMERANI/2828 pending inter-partes hearing of the application dated 7th August, 2026. 8. That the respondent be and is hereby ordered and/or compelled at his own cost, to exhume and remove the remains of the late ELIA BOKE, from the disputed subject suit property NYABASI/BOMERANI/2828 and restore the disputed subject property to the position it was prior to the unlawful burial, in default the plaintiff to undertake the same and recover the costs of the exercise from the defendant. 9. That the respondent is granted 10 days to purge the contempt in terms of prayer (e) above in default order is hereby issued committing the respondent to a civil jail for a period six (6) months for contempt of court order. 10. The plaintiff will have costs of the application. **Dated, Signed and Delivered in open Court at Kehancha on this 19th day of August, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Mang’era/Enock…….Court Assistant** **Plaintiff………..Present** **Defendant……..Present** **Advocate for plaintiff……..Ms. Onyangore present** **Advocate for the defendants……Mr. Muniko present**