https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3535

Dodhia v Kung'u & another (Environment and Land Case 1577 of 2014) [2026] KEELC 3535 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3535 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 1577 of 2014 CG Mbogo, J June 11, 2026 Between Akatsh Himatlal Dodhia Plaintiff and Dorothy Margaret Wanjiku Kung'U 1st Defendant Chief Land Registrar 2nd Defendant Ruling 1.Before this court is the chamber summons dated 21st April, 2026 filed by the 1st defendant/applicant and it is expressed to be brought under Sections 1A,1B and 3A of the Civil Procedure Act and Article 57 of the Constitution and Order 19 Rule 1, and Order 51 Rule 1 of the Civil Procedure Rules seeking for the following orders:-1.Spent.2.That the honourable court be pleased to stay pending the hearing of this application inter-partes.3.That the honourable court be pleased to set aside the order issued on 9th March, 2026 requiring the defendant to attend court physically to show cause why she should not be punished for contempt.4.That the defendant's physical attendance in court be dispensed with on account of her advanced age and extreme ill-health.5.That the defendant be granted leave to “show cause” by way of an affidavit and/or other written dispositions and/or other means.6.That the costs of this application be in the cause. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of David Njoroge Kung’u sworn on even date. He identified himself as the son of the 1st defendant/applicant. He deposed that his mother, the 1st defendant/applicant, is currently quite ill and that she is therefore not in a position to swear the affidavit, not even by instructing her advocates, as she has difficulty in speaking. 3.He deposed that on 9th March, 2026 this court delivered a ruling making a finding that the 1st defendant/applicant is in contempt of court orders and directed that a notice to show cause do issue, requiring her to appear before this court on 22nd of April, 2026. However, the 1st defendant/applicant is medically incapacitated and is unable to speak clearly, making it difficult to understand her. The deponent pleaded that should this court find that her appearance is still mandatory, he prays that such appearance be restricted to the judge’s chambers to preserve her dignity. Further, being dissatisfied with the ruling finding her in contempt of court, the 1st defendant/applicant filed a notice of appeal dated 11th March, 2026, signifying her intention to appeal. 4.The plaintiff/respondent filed his replying affidavit sworn on 6th May, 2026. He deposed that the timing of the application demonstrates that it was filed to defeat or delay the notice to show cause rather than to address any genuine urgency. He noted that this instant application was filed on 21st April, 2026 and served on the morning of 22nd April, 2026 when the matter was scheduled for a notice to show cause later that afternoon at 2.30 p.m. which was 43 days after this court delivered its ruling on 9th March, 2026. 5.The plaintiff/respondent deposed that the 1st defendant/applicant has had adequate time to comply with the order of this court made on 12th October, 2017 but has elected not to do so and that there is no sufficient cause for this court to depart from or vary its orders of 22nd April, 2026 (sic), stating that illness and advanced age do not excuse disobedience of court orders. He deposed that in seeking to set aside the order of 9th March, 2026 the 1st defendant/applicant invites the court to sit on appeal of its own decision. 6.The plaintiff/respondent highlighted the order of 12th October, 2017 that requires the 1st defendant/applicant to complete the sale and transfer the suit property to him, which includes allowing him access to the property. Noting that the property is registered in his name, he stated that what remains for this matter to be finalized by the 1st defendant/applicant is the availing of the bank account details where he will deposit the balance of the purchase price of the suit property as ordered by the court and for the 1st defendant/applicant to allow access and peaceful handover of the suit property to him. 7.Contrary to the impression created by the 1st defendant/applicant, he does not seek her eviction from the suit property, because the portion of the property transferred to him is currently vacant and unoccupied. He urged the court to issue appropriate orders to facilitate completion of the transaction, including giving directions on the deposit of the balance of the purchase price and direct the 1st defendant/applicant to hand over peaceful access to his property. 8.This court directed that the application be canvassed by way of submissions. By the time of writing this ruling, none of the parties had filed their written submissions. Be that as it may, I have considered the application, and the reply thereof. The issue for determination is whether the application has merit. 9.This court delivered a ruling on 9th March, 2026, and issued the following orders:i.A notice to show cause to issue forthwith to the 1st defendant/contemnor to show cause why she should not be committed to jail or punished.ii.The 1st defendant/contemnor to appear in court on 22nd April, 2026 at 2.30 p.m. for the said notice to show cause.iii.Failure to comply with order (ii) above, warrants of arrest to issue.iv.The plaintiff/applicant is entitled to the costs of this application. The same to be borne by the 1st defendant/contemnor. 10.From the record, the instant application was filed just before the 1st defendant/applicant was ordered to appear before the court on the 22nd of April, 2026 to show cause why she should not be committed to jail or punished for being in contempt of court orders following the judgment and decree issued on the 12th of October, 2017. The son of the 1st defendant/applicant in his affidavit, stated that his mother, who is 90 years old is now medically incapacitated having suffered successive strokes stroke in 2020 and in 2021 and that since then, she is unable to speak clearly, therefore making it difficult to understand her. 11.While the orders were issued on 9th March, 2026, the 1st defendant/applicant’s did not deem it necessary to file the application, if at all, it raises weighty issues immediately and instead waited on the material day to file the said application. Without any further deliberations, the application was in my view calculated to delay the business of the court as concerns the orders issued on 9th March, 2026. 12.It must be noted that the court does not issue orders in vain. The Learned Judges of the Court of Appeal in the case of Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR), held that:-“We reiterate here that court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not. For as Theodore Roosevelt, the 26th President of the United States of America once said:-“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour’’.The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and centre. This would amount to abdication of our sacrosanct duty bestowed on us by the constitution. The dignity, and authority of the court must be protected.” 13.In the case of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J. (as he then was), underscored the importance of obeying court orders by stating as follows:-“It is essential for the maintenance of the rule of law and order that the authority and the 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 whom an order is made by court of competent jurisdiction, to obey it unless and until the 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 the order believes it to be irregular or void.” 14.The court observes that judgment was passed years ago in the year 2017 and is yet to be executed. Thus, allowing more time for the 1st defendant/applicant to get someone else to swear yet another affidavit, since she cannot do so herself, would drag the matter even further. It is quite intriguing that even after having acquired a title registered in his name, the plaintiff/respondent is yet to realize the fruits of his judgment. The simple reason being that the 1st defendant/applicant refused to receive the balance of the purchase price. I fail to understand why the 1st defendant/applicant’s deponent could not simply propose how the 1st defendant/applicant could receive the balance of the purchase price yet seek to set aside the court’s ruling delivered on 9th March, 2026 to allow for an appeal. 15.While I recognize it is the right of the 1st defendant/applicant to file an appeal that does not give her excuse for non-compliance of the court’s orders. In order to achieve the ends of justice and for the plaintiff/respondent to realize the fruits of his judgment, I will grant the following orders:i.The notice of motion dated 21st April, 2026 lacks merit and it is hereby dismissed with costs to the plaintiff/respondent.ii.The balance of the purchase price for LR. Number 7741/422 to be deposited in a joint interest earning account in the names of the advocates for the plaintiff/respondent and the 1st defendant/applicant to hold in trust for the 1st defendant/ applicant following confirmation of a legal guardian appointed for the 1st defendant/ applicant.iii.For clarity, the joint interest earning account to be opened within 3 days from the date hereof and the balance thereof to be deposited within 7 days from the date hereof.iv.Thereafter and within 10 days from the date hereof, the 1st defendant/ applicant to hand over possession of the suit property known as LR. Number 7741/422 to the plaintiff/respondent.v.The OCS Spring Valley Police Station to oversee and ensure peaceful handover of the suit property in compliance with Order (iv) above.vi.Further mention on 09th July, 2026 to confirm compliance with the above orders.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE11/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMr. Kabebe for the 1st Defendant/ApplicantMr. Amwayi holding brief for Mr. Ochieng for the Plaintiff