https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3268

Chemutai & another v Kahuthu (Environment and Land Case Civil Suit E162 of 2023) [2026] KEELC 3268 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELC 3268 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case Civil Suit E162 of 2023 TW Murigi, J May 22, 2026 Between Brenda Chemutai 1st Plaintiff Paula Cherop 2nd Plaintiff and Naftaly Kahuthu Defendant Ruling 1.By a Notice of Motion dated 2nd December 2025, brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Sections 3, 4, 6(c), and 28 of the Contempt of Court Act, Section 121 of the Penal Code, and Sections 79 and 80 of the Land Registration Act, the Defendant/Applicant seeks the following orders:a.Spent.b.That the Honourable Court be pleased to give an order citing the 1st and 2nd Plaintiffs/Respondents for contempt of court by procuring and/or participating in administrative proceedings in violation of this Honourable Court's order maintaining the status quo and while the matter was sub judice before this Honourable Court.c.That the Honourable Court be pleased to give an order citing the 1st and 2nd Plaintiffs/Respondents herein for contempt of court and committing them to civil jail for a term of six (6) months and/or until they purge their contempt, or in the alternative, fining each of them Kenya Shillings Two Hundred Thousand only (Kshs. 200,000/=).d.That the Honourable Court be pleased to give an order declaring null and void the ruling dated 26th August 2025 regarding Land Parcel No. Nairobi Block 196/759.e.That the Honourable Court be pleased to give an order restraining the 1st and 2nd Plaintiffs/Respondents, their agents, servants and/or any person acting under their authority from implementing, acting upon, or giving effect to the said ruling dated 26th August 2025.f.That the Honourable Court be pleased to give an order compelling the relevant authorities to restore the status quo ante by reinstating the Applicant's Certificate of Lease for Land Parcel No. Nairobi Block 196/759 in compliance with this Court's earlier order maintaining the status quo.g.That the costs of this Application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of the Applicant sworn on even date. The Applicant’s Case 3.The Applicant averred that there is a pending suit between the parties regarding Land Parcel No. Nairobi Block 196/759, in which this Court issued an order maintaining the status quo, which is subsisting and has not been set aside, varied or discharged by any Court of competent jurisdiction. 4.He further averred that on 26th August 2025, while the matter was pending before the Court and in violation of the said order, administrative proceedings were conducted at the Nairobi Land Registry, resulting in a ruling that purported to cancel his Certificate of Lease, thereby amending the records relating to the suit property. He deposed that the proceedings were conducted in his absence. He asserted that he was not served with summons as alleged, which amounted to a fundamental breach of the audi alteram partem rule and the principles of natural justice. 5.He contended that, despite the Plaintiffs being aware of the subsisting Court order and the pending proceedings, they procured and/or participated in the administrative proceedings, thereby acting in contempt of court. He further averred that the ruling of 26th August 2025 was based on false information, specifically the assertion that the deceased, Marylene Chepchirchir Barngetuny, the alleged owner, died in 2005, whereas Court records clearly show that the deceased died on 8th December 2016. 6.He averred that the Land Registrar proceeded to give effect to the impugned administrative decision and cancelled the Applicant's title. He contends that the Plaintiffs' conduct demonstrates a clear disregard for established legal principles, undermines the authority and dignity of the Court and interferes with the due administration of justice. He asserted that he continues to suffer substantial prejudice and loss as a result of the Plaintiffs' conduct. 7.In conclusion, he urged the Court to allow the application as prayed. The Plaintiffs/respondents Case 8.The Plaintiffs filed Grounds of Opposition dated 5th February 2025 and a Preliminary Objection of even date in opposition to the application. 9.The Plaintiffs contend that the application is frivolous, vexatious and an abuse of the Court process, as it is based on the Contempt of Court Act, which was declared unconstitutional by Mwita J in Nairobi High Court Constitutional Petition No. 87 of 2017. 10.They argued that the application is incompetent and misconceived for having been brought by way of a Notice of Motion, instead of an Application Notice as specified under Part X Rule 81 of the Civil Procedure Rules. 11.The Plaintiffs contended that the application is misconceived in seeking remedies against the Chief Land Registrar, who is not a party to the proceedings, thereby offending the principles of non-joinder. They argued that the decision of the Chief Land Registrar can only be challenged through judicial review, an appeal, or a constitutional petition. 12.It was argued that the prayer for the reinstatement of the Applicant's name on the title to the suit property is a substantive relief that cannot be granted at the interlocutory stage. 13.The Plaintiffs contend that the application is fatally defective for failing to demonstrate the four essential elements of civil contempt. They argued that the acts complained of were undertaken by a statutory office holder exercising judicial powers vested in her by statute. 14.They further contended that the application is bad in law, incurably defective and an abuse of the Court process. They asserted that they had, at all material times, complied with the Court order issued on 16th February 2024, which directed that the status quo be maintained by prohibiting development, transfer, sale, or alienation of the suit property. 15.The Plaintiffs further contended that they neither undertook, procured, influenced, nor participated in the decision of the Chief Land Registrar dated 26th August 2025. It was further contended that the Chief Land Registrar is not a party to the suit and that no adverse orders can be issued against her without violating the rules of natural justice. 16.They further contended that the application sought to unlawfully convert contempt proceedings into an appeal or judicial review against the Registrar's decision, contrary to established law. It was argued that the Plaintiffs are legally entitled to pursue parallel civil, criminal, and administrative remedies, including lodging a complaint with the Directorate of Criminal Investigations, without violating any court order. 17.The application was canvassed by way of written submissions. At the time of writing this ruling, the Applicant had not filed his submissions as directed. The Respondents Submissions 18.The Respondents filed their submissions dated 5th February 2025. 19.On behalf of the Respondents, Counsel submitted that none of the provisions cited in the application confers jurisdiction on the Court to hear the application as framed. To support this point, reliance was placed on Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR and Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KECA 48 (KLR). 20.It was submitted that Sections 1A, 1B, and 3A of the Civil Procedure Act merely specify the overriding objective and the court's inherent powers, and cannot be invoked to confer jurisdiction. Counsel further submitted that in the absence of jurisdiction, the application is a nullity and should be struck out. 21.Counsel argued that the application is partly based on the Contempt of Court Act, which was declared unconstitutional in Kenya Human Rights Commission v Hon. Attorney General. Counsel submitted that a statute declared unconstitutional has no legal force, and reliance on such an invalid and non-existent statute rendered the application defective. Counsel further submitted that Section 121 of the Penal Code is not applicable in civil proceedings. 22.Counsel argued that the application is procedurally incompetent, having been brought by way of a Notice of Motion instead of an Application Notice as required by Part X Rule 81 of the Civil Procedure Rules. To support this argument, reliance was placed on Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, where the Court of Appeal held that an application for committal for contempt must be brought by way of an application notice, must expressly set out the grounds relied upon, must identify each alleged act of contempt separately and numerically, must be supported by affidavits containing all the evidence relied upon, and must be personally served on the respondent. It was submitted that the application before the Court failed on all these counts. Further reliance was placed on Republic v Ahmad Abolfathi Mohammed & Another (2018) eKLR and Shimmers Plaza Limited v National Bank of Kenya Limited (2015) eKLR. 23.Counsel submitted that the reliefs sought by the Applicant arose directly from the actions of the Chief Land Registrar, who is not a party to the proceedings. Counsel contended that Courts cannot issue adverse orders against parties not before them, and that the failure to join the Chief Land Registrar offended the doctrine of non-joinder and rendered the application incompetent. To support this argument, reliance was placed on Departed Asians Property Custodian Board v Jaffer Brothers Limited [1999] 1 EA 55 and Amon v Raphael Tuck and Sons Limited [1956] 1 ALL ER 273. 24.Counsel submitted that the Chief Land Registrar's decision of 26th August 2025 was made pursuant to her statutory powers under Sections 14, 79, and 80 of the Land Registration Act. Counsel further submitted that such a decision can only be challenged through judicial review, an appeal, or a constitutional petition, not through contempt proceedings. It was argued that the application is misconceived and an abuse of the court process. To support this argument, reliance was placed on Speaker of the National Assembly v Karume (1992) KLR 21 and Republic v National Land Commission & Another ex parte Sound Equipment Limited (2019) eKLR. 25.Counsel contended that the prayer seeking reinstatement of the Applicant's name on the title to the suit property amounts to a final determination on the substantive dispute at the interlocutory stage, which is impermissible when the facts are disputed. To support this point, reliance was placed on Mbuthia v Jimba Credit Finance Corporation & Another (Civil Appeal No. 111 of 1986) [1988] KLR, where the Court held that the idea of finalising disputes at the interlocutory stage should never be considered unless the parties had agreed for the Court to treat the application as the hearing of the suit. 26.Counsel submitted that the Applicant has not demonstrated the essential elements of civil contempt, namely the existence of a valid court order, knowledge of the order by the alleged contemnor, ability to comply, and willful and deliberate disobedience. Reliance was placed on Mutitika v Baharini Farm Limited (1985) KLR 29 and Katsuri Limited v Kapurchand Depar Shah (2016) eKLR. Counsel further submitted that contempt is a personal wrong that cannot be attributed by association, and that the acts complained of are solely attributed to the Chief Land Registrar, and not the Respondents. Further reliance was placed on Teachers Service Commission v Kenya National Union of Teachers & 2 Others (2013) eKLR and Justus Kariuki Mate & Another v Martin Wambora & Another (2014) eKLR. 27.On the quasi-criminal threshold, Counsel submitted that contempt of court requires proof of willful, deliberate and intentional disobedience of a Court order to a standard higher than a balance of probabilities, which the Applicant failed to prove against the Respondents. To support this point, reliance was placed on Republic v Abolfathi Mohammed & Another (2018) eKLR and Ochino & Another v Okombo & 4 Others (1989) KLR 165. Analysis And Determination 28.Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination:a.Whether the preliminary objection is merited;b.Whether the 1st and 2nd Plaintiffs are in contempt of court; andc.Whether the orders dated 26th August 2025 should be nullified. 29.Regarding the first issue, the Plaintiffs challenged this Court's jurisdiction on two grounds: first, that the application is based on the Contempt of Court Act, which was declared unconstitutional and invalid by Mwita J in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR; and second, that the application was filed by way of a Notice of Motion rather than an Application Notice as required under Part X Rule 81 of the Civil Procedure Rules. 30.It is trite that jurisdiction is everything, and without it, the Court cannot take one more step. In Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR, the Court held that:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings...” 31.A Court derives its jurisdiction from the Constitution, legislation, or both. This Court derives its jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 32.The declaration of the Contempt of Court Act unconstitutional does not deprive this Court of jurisdiction to punish for contempt. The substantive jurisdiction is based on Section 5 of the Judicature Act, which provides that:“(1)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 such 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.” 33.Additionally, Section 29 of the Environment and Land Court Act provides that:“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 34.Reliance on a repealed or unconstitutional statute does not, by itself, render an application incurably defective where the substantive jurisdiction is independently established: it is the substance of the application, not the citation of an invalid statute, that governs. 35.Regarding the procedural challenge, the Plaintiffs assert that an application for committal for contempt must be brought by way of an Application Notice under Part X Rule 81 of the English Civil Procedure (Amendment No. 2) Rules, 2012. In Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR, the Court of Appeal held that under the prevailing state of law of contempt in England, an application must be brought by Application Notice, must set out fully and numerically each alleged act of contempt, must be supported by affidavits containing all the evidence relied upon, and must be personally served on the respondent. 36.The present application has been brought by way of a Notice of Motion. However, this Court is satisfied that the grounds for contempt are adequately disclosed in the supporting affidavit and that no prejudice has been occasioned. Article 159(2)(d) of the Constitution stipulates that justice shall be administered without undue regard for procedural technicalities. Accordingly, this Court finds that the procedural irregularity is curable and does not deprive this Court of jurisdiction to determine the application on its merits. Accordingly, this Court has jurisdiction to hear and determine the application. Based on the foregoing, I find that the preliminary objection lacks merit and is hereby dismissed. 37.Regarding the second issue, Black's Law Dictionary, 9th Edition, defines contempt of Court as:“conduct that defies the authority or dignity of the court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.” 38.In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another (2005) eKLR, the Court observed as follows:“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 times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect to whom an order is made by the 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 void.” 39.The law governing the present application is Order 40, Rule 3(1), of the Civil Procedure Rules, which provides as follows:In cases of disobedience, or of breach of any such terms, the Court, granting an injunction, may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release. 40.In Samuel M.N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the Court set out the elements to be proved in an application for contempt as follows: 1.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; 2.The defendant had knowledge of or proper notice of the terms of the order; 3.The defendant has acted in breach of the terms of the order; and 4.The defendant’s conduct was deliberate. 41.The first issue for determination is whether the terms of the order were clear. The record shows that this Court issued an order dated 16th February 2024 in the following terms:That the court hereby directs that status quo be maintained on the suit property, barring any development, transfer or sale or any action until the hearing and determination of this suit. 42.The orders were clear and unambiguous. The order was binding on the parties to the proceedings. 43.Regarding the second element, the record shows that the order was delivered in the presence of Counsel for both the Plaintiffs and the Defendant. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 eKLR, the Court of Appeal held that:“There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” 44.It is clear that the Respondents were aware of the order since it was issued in the presence of both Counsels. 45.Regarding the third and fourth elements, whether the Respondents have deliberately breached the court order, the Applicant bears the burden of proving his case on a balance of probabilities. This is because contempt of court is in the nature of criminal proceedings, and the liberty of the subject is usually at stake. To succeed in contempt proceedings, the Applicant must prove wilful and deliberate disobedience of the court. In Gatharia K. Mutikika v Baharini Farm Ltd (1985) KLR, the Court held that:“A contempt of court is an offence of a criminal nature. A man may be sent to prison. It must be proved satisfactorily…..It must be higher than prove on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal nature.” 46.In Peter K. Yego & Others vs Pauline Wekesa Kode ACC NO. 194 of 2014, the Court held that:“it must be proved that one had actually disobeyed the court order before being cited for contempt.” 47.The Applicant contends that the administrative proceedings before the Chief Land Registrar, which resulted in the cancellation of his Certificate of Lease, were initiated by the Plaintiffs' advocate, Allen George Njogu. The said advocate is, however, not a party to these proceedings, nor was he explicitly bound by the Court orders. 48.Based on the material before this Court, I find that the elements of civil contempt have not been proven to the required standard. 49.The Defendant has sought a declaration that the ruling of the Chief Land Registrar dated 26th August 2025 is null and void. 50.It is trite law that a Court cannot issue adverse orders against a person or institution that is not a party, and that has not been given an opportunity to be heard. This principle was affirmed by the Court of Appeal in Pashito Holdings Limited & Another vs Paul Nderitu Ndungu & 2 Others [1997] KECA 423 (KLR), where the Court held that no finding, whether prima facie or final, should be made against a person who has not participated in the proceedings. The Chief Land Registrar is not a party to these proceedings. 51.Accordingly, to nullify the Chief Land Registrar's decision in these proceedings would violate the principles of natural justice. 52.The decision by the Chief Land Registrar was made within her statutory powers under Sections 14, 79, and 80 of the Land Registration Act. Such a decision can only be challenged through judicial review, an appeal, or a constitutional petition, and not by an interlocutory application in civil proceedings. 53.In light of the foregoing, I find that the application dated 2nd December 2025 lacks merit and is hereby dismissed. 54.Notwithstanding the foregoing, this Court is not without a remedy sufficient to protect the integrity of its own process. The phrase "or any action" in the order is broadly applicable and extends beyond development, transfer, or sale to include any step that alters or affects the registered position or the legal status of the suit property pending the final determination of the suit. 55.The doctrine of lis pendens serves to preserve the subject matter of litigation pending the hearing and determination of the suit. It prohibits parties from transferring, alienating, or otherwise dealing with the disputed property in a manner likely to prejudice the opposing party or defeat the outcome of the proceedings. In Cieni Plains Company Limited & 2 Others v Ecobank Kenya Limited [2017] eKLR, the court held that the doctrine of lis pendens stipulates that during litigation, nothing should be changed. 56.In the matter at hand, the suit property is the subject of pending proceedings before this court, and the order of 16th February 2024 remains in force. Any dealings with or actions on the suit property during the pendency of this suit that alter the registered position offend the doctrine of lis pendens and are not allowed. 57.In the exercise of its inherent jurisdiction under Section 3A of the Civil Procedure Act, I hereby issue the following orders:a.The status quo orders of 16th February 2024shall remain in force.b.The implementation of the decision of the Land Registrar dated 26th August 2025 is hereby stayed pending the hearing and determination of this suit.c.Costs shall abide with the outcome of the suit. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY 2026.…………………………………….HON. T. MURIGIJUDGEIN THE PRESENCE OF:Gwandaru for the ApplicantAhmed – Court assistant ELC CIVIL SUIT NO. E162 OF 2023 0