https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11851

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL SUIT NO. E101 OF 2024** **ENCHIPAI MARA CAMP……………………………………..……1ST PLAINTIFF** **DR. NJOROGE OBADIAH KIMANI……………………………..2ND PLAINTIFF** **VERSUS** **SAMUEL PARSOILAL NAIDOYA……………………………….1ST DEFENDANT** **MICHAEL MAFABIK KIRUNGI MASINJILA…………..…….2ND DEFENDANT** **JAMES KESU OLE KISURKAT ……………………………..…..3RD DEFENDANT** **AND** **AHADI LUXURY CAMP LTD……………………………....INTERESTED PARTY** **RULING** 1. The 2nd, 3rd Defendants and the Interested Party/Applicants filed the Notice of Motion dated 7th May, 2025 seeking the following orders: 1. *The Court to cite the Plaintiffs for contempt of court of the ex parte orders issued on 6th March 2024.* 2. *The Court to issue orders restraining the Plaintiffs from undertaking any action, including construction on the suit premises, that falls outside the scope of the ex parte orders issued on 6th March 2024.* 3. *The Court to issue orders restraining the Plaintiffs from passing off on any platform and trading as Ahadi Luxury Camp Ltd, an entity erected on Plot No. Transmara/ Kimintet "D"/1433.* 4. *The Court to vacate/ set aside the ex parte orders issued to the Plaintiffs on 6th March 2024.* 5. *The Court to issue orders restoring the Interested Party back to its camp erected on Plot No. Transmara/Kimintet "D"/1433.* 6. *As an alternative to (7) above, the Court to design an order to put parties back to an equal position prior to the contemptuous acts by the Plaintiffs.* 7. *The Court to direct the Plaintiffs to give an account of all the monies that they have received since forcefully getting into Ahadi Luxury Camp Ltd and unlawfully running its operations from 12th March 2024 to date.* 8. *The Court to grant any further orders that it may deem fit in the circumstances.* 9. *Costs of the application be borne by the Plaintiffs.* 2. The Application was supported by the Affidavit of Michael Mafabik Kirungi Masinjila. He stated that out of the nine orders sought, the Court on 6th March, 2024 granted the Plaintiffs orders restraining the Defendants from interfering with the ranch established on Plot Nos. Transmara/Kimintet “D”/1432 and Transmara/Kimintet “D”/1433. It also granted an order directing the Officer Commanding Kilgoris Police Station to assist in the enforcement of the said orders. The Plaintiffs thereafter abused the said orders on 12th March, 2024. This is by forcefully invading **Ahadi Luxury Camp Ltd** with hired goons, vandalizing camp facilities, and unlawfully taking over the camp’s operations. 3. It was further alleged that the Plaintiffs have since continued operating the camp outside the scope of the Court orders while passing themselves off as Ahadi Luxury Camp Ltd under the name **“Enchipai Mara Camp t/a Ahadi Luxury Camp Ltd.”** The Plaintiffs have illegally hosted guests, diverted clients, hacked the camp’s social media business accounts, disseminated false information, and redirected bookings to the 2nd Plaintiff, thereby occasioning substantial financial loss and reputational damage to **Ahadi Luxury Camp Ltd**. 4. The Interested Party further contended that the Plaintiffs unlawfully procured the cancellation of **Ahadi Luxury Camp Ltd.’s** Certificate of Lease. They further fraudulently caused the lease to be registered in the 1st Plaintiff’s name despite there being no Court order authorizing such actions. It was also alleged that the Plaintiffs have undertaken unauthorized construction activities on the suit property and unlawfully altered the company’s shareholding and directorship structure. According to the Interested Party, the Plaintiffs’ actions amount to contempt of Court. This is as they abuse the authority of the Court to perpetuate illegalities and undermine the administration of justice. 5. The Respondents filed their Replying Affidavits, sworn on 28th January, 2026 and 7th November 2025. The Interested Party averred that the Plaintiffs unlawfully relied on the *ex parte* orders issued by the Court on 6th March, 2024, restraining the Defendants from interfering with the ranch established on Plot Nos. Transmara/Kimintet “D”/1432 and Transmara/Kimintet “D”/1433 to violently invade the Interested Party’s camp, evict its staff, and forcefully take over its operations, which they continue to run to date, contrary to the scope and intent of the Court order. 6. Further, the Plaintiffs conspired with officials at the Lands Registry to unlawfully cancel the Interested Party’s Certificate of Lease without any Court order and fraudulently caused the suit properties to be registered in the name of the 1st Plaintiff. In addition, the 1st Plaintiff has since been passing itself off as **Ahadi Luxury Camp Ltd** under the name **“Enchipai Mara Camp t/a Ahadi Luxury Camp Ltd”** with the intention of misleading and diverting the Interested Party’s clients by unlawfully booking and hosting guests at the Interested Party’s premises while falsely purporting to trade as the Interested Party. 7. The 2nd Plaintiff responded by stating that the Plaintiffs filed an omnibus application contemporaneously with the suit seeking various interim orders, which application was placed before the Court on 6th March, 2024. Upon hearing the application, **Hon. Justice Mabeya** granted, inter alia, orders restraining the then 1st and 2nd Defendants, their personnel, agents, employees, or any other persons acting on their behalf from interfering with the ranch established on Plot Nos. Transmara/Kimintet “D”/1432 and Transmara/Kimintet “D”/1433, and further directed the Officer Commanding Kilgoris Police Station to assist in the enforcement of the said orders. The said interim orders applied to **Samuel Parsoilal Naidoya** and **Mafabik Kirugi Masinjila**, who were then the 1st and 2nd Defendants before the subsequent amendment of parties and joinder of the Interested Party. 8. The Plaintiffs denied the allegations that they hired goons or destroyed property, contending that the allegations are false and misleading. The Plaintiffs averred that on 12th March, 2024, in lawful compliance with the Court orders, the 1st Plaintiff’s directors, accompanied by their driver, family members, friends, five private security personnel, and officers from Lolgorian Police Station, proceeded to the camp solely for purposes of securing access to the property owing to prior threats of bodily harm allegedly issued by the 1st Defendant. The Plaintiffs maintained that their actions were lawful, supervised by police officers, and did not involve destruction of property. 9. The Plaintiffs further stated that upon arrival at the camp, they encountered resistance from persons aligned to the 1st Defendant who allegedly brandished machetes and arrows, thereby obstructing lawful access to the property and justifying the need for police presence. According to the Plaintiffs, the purported “hired goons” were in fact individuals engaged by the 1st Defendant and that any destruction occasioned at the camp was caused by those individuals in a deliberate attempt to stage-manage grounds for the contempt proceedings. The Plaintiffs also denied the allegations in paragraph 6 of the Supporting Affidavit and contended that the employees referred to therein were lawfully employed by the 1st Plaintiff following the completion of construction of the camp in early 2023. **Issues for determination** 10. The Court has carefully considered the Application, the response therewith, the written submissions as well as the oral highlights by Counsel for the parties. The Court frames the following issues for determination: 1. *Whether the Plaintiffs are in Contempt of court by abusing the ex parte orders issued 6th March, 2024.* 2. *Whether the Court should discharge the orders of the Court issued on 6th March, 2024 on account of abuse of the Court orders.* 3. *Whether the Court should design appropriate reliefs to restore parties to the position they were in before the contemptuous acts of the Plaintiffs.* **Analysis** 11. The Application herein seeks to invoke the Court’s inherent jurisdiction to cite the Plaintiffs for contempt of Court arising from the alleged breach and abuse of the *ex parte* orders issued on 6th March, 2024. ***a)*** ***Whether the Plaintiffs are in Contempt of Court by abusing the ex parte orders issued 6th March, 2024.*** 12. The Interested Party contended that the Plaintiffs unlawfully relied on the said orders to invade and forcibly take over the operations of the Interested Party’s camp situated on the suit property, and further procured the unlawful cancellation of the Interested Party’s lease over the property without the approval of the Court or any determination of the parties’ respective rights over the suit property, thereby undermining the dignity and authority of the Court and occasioning a blatant violation of the rule of law. 13. In contrast the Respondents argued that the interim orders issued by the Court applied solely to **Samuel Parsoilal Naidoya**, the Landlord, and **Mafabik Kirugi Masinjila**, who were then the 1st and 2nd Defendants, and merely restrained them from interfering with the ranch established on Plot Nos. Transmara/Kimintet “D”/1432 and Transmara/Kimintet “D”/1433. Notably, no order was issued restraining the Plaintiffs from operating or managing the ranch and camp situated on the suit properties. Consequently, the Plaintiffs contended that their continued operation of the camp cannot amount to a breach or contravention of the interim orders issued by the Court. 14. It is undisputed that **Hon. Justice Mabeya** granted two interim orders inter alia, providing as follows: ***a. THAT an*** ***order directing the 1st and 2nd Defendants, their personnel, agents, employees, or any other person in whatsoever capacity not to interfere with the ranch established on Plot Nos. Transmara/Kimintet” D”/1432 and Transmara/Kimintet ”D”/1433.*** ***b. THAT the Officer Commanding Police Station, Kilgoris Police be and hereby directed to offer assistance in enforcing the orders issued.*** 15. In ***Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi (2016) eKLR*** the Court set out the elements of civil contempt of court as follows: - 1. ***order to be clear,*** 2. ***defendant to have knowledge of the order,*** 3. ***defendant acted in breach of the order and*** 4. ***the conduct was deliberate.*** 16. Based on the elements above, the court notes that the interim order issued on 6th March 2025 was clear and the order directed the 1st and 2nd Defendants, their personnel, agents, employees, or *any other person* in whatsoever capacity not to interfere with the ranch established on Plot Nos. Transmara/Kimintet” D”/1432 and Transmara/Kimintet” D”/1433. 17. Looking at the pleadings filed before the Court, the Plaintiffs filed a suit to protect and preserve an established business at Plot Nos. Transmara/Kimintet” D”/1432 and Transmara/Kimintet” D”/1433. It is this order that Hon. Justice Mabeya issued. To this Court the order presupposes that there was an already established business or activity at the ranch that required the protection of the Court. 18. The Plaintiffs state that they went to the premises in the company of Police in compliance with Court orders and met hostility. They state that any destruction to the property was by the Defendants and persons organized and acting at the behest of the Defendants and not the Plaintiffs. 19. The presence of the Police at the site and scene of the alleged invasion and destruction does not appear convincing to this Court at this interlocutory stage. The police were on site pursuant to an order issued by Hon Justice Mabeya. If the police stood aside and watched mayhem and destruction take place, no complaint has been made against them. The police presence would have been to keep order and if they failed to do so, at the very least a complaint to IPOA to carry out investigations would speak volumes. 20. As matters stand as of now it’s the Applicants words against the Plaintiffs. At this interlocutory stage the Court is not persuaded that the Plaintiffs acted contrary to the Court orders and therefore they are in contempt. **b) *Whether the Court should discharge the orders of the Court issued on 6th March, 2024 on account of abuse of the Court orders.*** 21. Having failed to persuade the Court that the Plaintiffs have acted in contempt of the *ex parte* orders issued on 6th March, 2024 the Court is not persuaded that it should discharge the same. That would be punishing the Plaintiffs without hearing the parties i*nterpartes* and on merit. ***c) Whether the Court should design appropriate reliefs to restore parties to the position they were in before the contemptuous acts of the Plaintiffs.*** 22. Averments have been made regarding the changes in the registration of the lease over the land the subject matter of this lease. This was not an issue framed during the filing of the suit. It is an event that has occurred after the filing of the proceedings. How that may impact on the suit as well as whether this Court is seized of jurisdiction to adjudicate on land rights is an issue that parties may want to address this Court. 23. Even the Directorship of the Company is said to have changed. The 1st Defendant is said to have been removed as a Director of **Enchipai Mara Camp Ltd**. There are also allegations of fraud, forgery and investigations by DCI. 24. The Court is of the view that it is prudent and pragmatic to get to the heart of this dispute and hear the parties fully. Interlocutory applications though necessary rarely resolve the disputes between parties conclusively. When parties litigate through applications, they rarely give the Court an opportunity to hear the evidence in full, get to the core of the dispute and adjudicate on the rights of the parties conclusively. Looking at the facts of this case, the Court is of the view that any orders issued by the Court can be undone if it is later proved that the *ex parte* orders ought not to have been granted. The Application dated 29th February, 2026 ought to be heard *interpartes.* 25. The purpose of the law of contempt is to maintain the rule of law and the dignity of the Court. In the case of ***Econet Wireless Kenya Limited vs Minister for Information and Communication of Kenya Authority [2005] eKLR***, the Court stated 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.”*** 26. The Court also relies upon **Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 (KLR)** and **Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR).** These binding decisions of the Court of Appeal lay the burden of proof upon the Applicants. The contempt was to be proved beyond a balance of probabilities but not as high as beyond reasonable doubt. The presence of the police said to be acting pursuant to the very same order and the competing averments in the affidavits leave this Court in doubt. That doubt is resolved in favour of the Respondents. 27. In light of the above, the Court’s finding is that the contempt is not proved. The application therefore fails. 28. As to costs the same lie at the discretion of this Court and ordinarily follow the event. The order that commends itself to this Court is that the 2nd and 3rd Defendants and the Interested Party/Applicants shall bear the costs of the application. **Determination** 29. The Court makes the following orders as regards the 2nd, 3rd and Interested Party/Applicants application by way of a Notice of Motion dated 7th May, 2025: 1. *The Notice of Motion dated 7th May, 2025 is HEREBY dismissed for lack of merit.* 2. *The Costs of the application to be borne by the Applicants.* 30. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Mr. Ondati for the Plaintiffs/Respondents. N/A for the 1st Defendant/Respondent. Miss Kwang’a for the 2nd, 3rd Defendants and Interested Party/Applicants. Mr. John Paul - Court Assistant.