https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12137

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION** **ACEC SUIT NO. E012 OF 2023** **ETHICS AND ANTI-CORRUPTION COMMISSION…………………..APPLICANT** **VERSUS** **MICHAEL AUKA AJWANG……………..…………………………1ST RESPONDENT** **THE HYDEOUT RIVIERA LIMITED…………………..………….2ND RESPONDENT** **AND** **SIPROSE AKINYI AJWANG** **BARVE OUMA AJWANG** **FELIX OMONDI AJWANG** **GEOFFREY OGINA AJWANG** **MARY AGIK** **BRENDA AJWANG** **VIVIAN AMONDI AJWANG** **BERYL AJWANG……………………………………**………**INTERESTED PARTIES** **RULING** 1. By a Notice of Motion Application dated 29 April 2026 filed under Certificate of Urgency and brought under Section 1A, 1B, 3A of the *Civil Procedure Act*, Order 40 (1) and 51(1) of the *Civil Procedure Rules* and all enabling provisions of the law, the Applicant is seeking the following orders; 1. Spent 2. THAT this Honourable Court be pleased to find that the Respondents are in contempt of the Consent Order adopted in court on 15 July 2024. 3. THAT this Honourable Court be pleased to enter Judgment against the Defendants for the sum of Kshs. 198,000,000/- being the total value of parcel no. South Sakwa/barkawino/6934 and the Hydeout Riviera Hotel developed onKisumu/Reru/1454 plus costs and interest. 4. THAT this Honourable Court reinstates the injunctive orders issued on 1 August 2023 pending inter parties hearing and determination of this application and the Respondents by themselves, their agents, servants and/or employees or any other person whosoever be restrained from alienating, wasting, transferring, disposing or in any other way dealing with the following properties; Parcels of land known as: South Sakwa/Barkawino/6934; Siaya/Mahaya/2026; Siaya/Mahaya/2027; Siaya/Mahaya/2028; Siaya/Mahaya/2030; Kisumu/Municipality Block 10/591; Kisumu/Ngere/756; Utawala Estate Phase bearing Reference No. 7340/92/67; Plot Certificate No. 168. Motor vehicles registration Numbers: KDC 159A, KDD 299K, KBV 015M, KCX 399C, KCJ 611F, KDD 299U, KDH 167T, KCH 091C, KDE 188U and KCU 264S. 5. THAT this Honourable Court issues an order allowing the Applicant to execute the satisfaction of the Consent judgment: Consent Decree by disposing the following assets by way of public auction in Parcels of land known as: South Sakwa/Barkawino/6934;Siaya/Mahaya/2026;Siaya/Mahaya/2027;Siaya/Mahaya/2028; Siaya/Mahaya/2030; Kisumu/Municipality Block 10/591; Kisumu/Ngere/756; Utawala Estate Phase bearing Reference No. 7340/92/67; Plot Certificate No. 168. Motor vehicles registration Numbers: KDC 159A, KDD 299k, KBV 015M, KCX 399C, KCJ 611F, KDD 299U, KDH 167T, KCH 091C, KDE 188U and KCU 264S. 2. The Application is premised on the grounds set out on the face of the Motion and supported by the Affidavit of Phyllis Toroitich sworn on 29 April 2026. The Application is oppose by the Respondents herein who filed Replying Affidavit deponed by Michael Auka Ajwang, the 1st Respondent on 25 May 2026. 3. The facts of the case is that by way of Originating Summons dated 16 May 2023, the Applicant sought to recover from the 1st and 2nd Respondents and the Interested Parties properties listed therein which was alleged to constitute unexplained assets. The Applicant obtained injunctive orders preventing the disposal of the assets pending hearing and determination of the suit. While the suit was pending hearing, the parties engaged in negotiations and subsequently signed a settlement agreement on 15 July 2024 which was filed and adopted by the court as a Consent Decree on the 16 July 2024. It is that Consent Decree that the Applicant contends to have been breached by the the Respondents giving rise to the instant application. 4. In this application, the Applicant avers that the Respondents have since breached the terms of the Consent Decree by failing to pay the sums of Ksh. 22,000,000.00 within one (1) month and Ksh. 176,000,000.00 within twelve (12) from the date of the Order as agreed. It was averred that the Respondent, having failed to pay the Ksh.22,000,000.00 acceded to sale of property No. South/Barkawino/6934 by public auction vide letter dated 29 August 2024 contrary to the terms of the consent order. 5. It was further averred that the 1st Respondent, who retained management of the Hydeout Riviera Hotel (the 2nd Respondent) that sits on LR. No. Kisumu/Reru/1454, completely vandalized it resulting in a significant loss of value making it impossible for the Commission/Applicant to execute in satisfaction of the consent judgement. As evidence thereof, the Applicant filed a Status Report on the property dated 3 October 2025 demonstrating the nature and extent of destruction to the property. 6. The Applicant further averred that the injunctive orders were lifted at the time of negotiating the judgement in good faith on the understanding that the Respondents will settle the decretal sum as per the Consent Judgement which is not the case hence the orders sought in that regard. The court was urged to allow the application with costs. 7. The Respondents opposed the application and relied on the Replying Affidavit of Michael Auka Ajwang, the 1st Respondent sworn on 25 May 2026. It was averred that the application is misconceived, defective, bad in law and an abuse of the court process which ought to be dismissed with costs. Respondents went on to state that they have at all material times acted in good faith and have never deliberately or willfully disobeyed any lawful order of this court to warrant the orders sought. 8. The Respondent further averred that the consent judgment of 15 July 2024 was a negotiated settlement between the parties and that any challenges in its implementation is neither deliberate nor intended to defeat the ends of justice, and that the allegation that they have acted in bad faith are misconceived and intended to prejudice them. 9. It was also contended that contempt proceedings are quasi-criminal in nature that require a standard higher than that of ordinary civil cases and that the Applicant has not placed any material before the court to satisfy the legal requirement for grant of such orders. It was further contended that the Applicant has wrongfully sought to conflate the affairs of the 1st Respondent with those of the 2nd Respondent despite them being distinct legal persons. 10. The 1st Respondent took the view that the Applicant has failed to demonstrate the existence of any prohibitory order prohibiting them from dealing with the properties complained of, stating further that they have at all times been willing to engage with the Applicant with a view to implementing the consent judgment. They disputed the allegations of vandalism and deterioration of the hotel which they averred to be misleading stating that they failed to take into account factors beyond the Respondents control and that no nexus has been shown between the alleged state of the property and the willful disobedience of any order of this Court. 11. The Respondent deponed that the hotel was erected on ancestral family land which forms part of an estate currently under succession proceedings and that the property has competing family interests and legal processes beyond their control. They thus took the view that the orders sought were excessive, punitive and unjustified contending that re-instating the injunctive orders would gravely prejudice them without any lawful basis. The court was urged to dismiss the application with costs. 12. The case was canvassed by way of written submissions and parties were directed to file and serve their written submission prior to the hearing date. However, only the Applicant complied and filed their written submissions dated 15 June 2026. During hearing on 30 June 2026, both Parties orally submitted. 13. Having considered the Notice of Motion Application dated 29 April 2026 together with the Supporting Affidavit sworn on the same day by Phyllis Toroitich , Respondent’s response contained in the Replying Affidavit sworn on the 25 May 2026 by Michael Auka Ajwang, the rival submissions, record of proceedings and the law, I narrow down the issues for determination as follows; 14. Whether the Respondents are in contempt of the court order of 15 July 2024. 15. Whether the court should grant the orders sought. 16. ***Whether the Respondents are in contempt of the court order of 15 July 2024*** 17. The Applicant contended that the 1st Respondent, who retained management of the Hydeout Riviera Hotel (the 2nd Respondent) that sits on LR. No. Kisumu/Reru/1454, completely vandalized it resulting in a significant loss of value making it impossible for the Commission/Applicant to execute in satisfaction of the consent judgement. It was submitted that the willful and contemptuous vandalism of the hotel was in total disregard of the court order, and extinguished the Applicants fall back security. As evidence thereof, the Applicant filed a Status Report on the property dated 3 October 2025 demonstrating the nature and extent of destruction to the property. 18. The Applicant submitted that the consent order of 15 July 2024 having been adopted by the court, became a judgement of the court that is valid, enforceable and binding on all parties. It was contended that the order was clear, unambiguous and within the knowledge of the Respondents who were fully aware of it having participated its drafting, and that the Respondents willfully failed to comply by failing to pay the agreed sums of Ksh. 22,000,000 and Ksh. 176,000,000 within the stipulated timelines. Reliance was placed in the case of ***Sheila Cassant Issenberg & Watoto World Centre vs Antony Macharia Kinyanjui (2021) KEHC 5692 (KLR)*** to support of the argument that all three elements of civil contempt of court have been established. 19. The Respondents submitted that they have at all material times acted in good faith, have never deliberately or willfully disobeyed any lawful order of this court to warrant the orders sought. They contended that the consent judgment of 15 July 2024 was a negotiated settlement between the parties and that any challenges in its implementation is neither deliberate nor intended to defeat the ends of justice. 20. The Respondents deponed that the hotel was erected on ancestral family land which forms part of an estate currently under succession proceedings and that the property has competing family interests and legal processes beyond their control.They disputed the allegations of vandalism and deterioration of the hotel which they averred to be misleading stating that they failed to take into account factors beyond their control arguing that there was no nexus between the alleged state of the property and the willful disobedience of any order of this Court. 21. The Respondent further contended that contempt proceedings are quasi-criminal in nature that require a standard higher than that of ordinary civil cases and that the Applicant has not placed any material before the court to satisfy the legal requirement for grant of such orders. It was also contended that the Applicant has wrongfully sought to conflate the affairs of the 1st Respondent with those of the 2nd Respondent despite them being distinct legal persons. 22. Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. See Supreme court judgement in ***Stephen Maina Githiga & 5 others vs Kiru Tea Factory Ltd (2023) KESC 41 (KLR)***. 23. Courts punish for contempt or disobedience of court orders to uphold the dignity and authority of the court, ensure compliance with directions of the court, to preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. See ***Getecha vs Hydro Developers Limited ( 2025) KEELC721(KLR).*** 24. The substantive law governing contempt proceedings in Kenya is found in Section 5 of *the Judicature Act* which provides: *“ 5. (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.”* 1. In ***Cecil Miller vs Jackson Njeru & Another [2017] eKLR,*** the court outlined the ingredients for contempt of court orders as follows:- a. The terms of the order were clear and unambiguous and were binding on the defendants; b. The Defendant has knowledge of or proper notice of the terms of the order; c. The Defendant has acted in breach of terms of the order and; d. The Defendant’s conduct was deliberate. 1. Since contempt of court proceedings are quasi -criminal in nature, the standard of proof in contempt matters is higher than that of ordinary civil matters. See ***Mutitika vs Baharini Farm Limited [1985] KLR 229,*** where the Court of Appeal held that:- *“ In our view, the standard of proof in contempt proceedings must be higher than proof on the 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, in criminal cases.”* 1. The Applicant’s contention is that the Respondent be cited for contempt for willfully disobeying the consent order of 15 July 2024. The consent order emanated from a settlement agreement made pursuant to Section 56B of the *Anti -Corruption and Economic Crimes Act* between the Applicant, and the Respondents and Interested Parties herein dated and signed by all parties on 15 July 2024. It was presented in Court on 16 July 2024 where it was adopted as a Consent Decree of the court. Once adopted, the Consent Order had the same effect as a judgement of the court. See ***Flora N Wasike vs Destino Wamboko (1988) eKLR***. 2. The terms of the consent order/decree were as follows: ***“By Consent:-*** 1. ***Kshs 22,000,000/= being cost of parcel number South/Barkawino/6934 to be paid within 30 days from the date of entry of judgement;*** 2. ***Kshs. 176,000,000/= being cost of development of the Hydeout Riviera Hotel, to be paid to the Plaintiff by the Defendant within 12 months from the date of judgement;*** 3. ***In default thereof, The Hydeout Riviera, measuring approximately 0.19 Ha be hived off from parcel no. Kisumu/Reru/1454 and execution to issue and the decretal sum to accrue interest at 12% per annum;*** 4. ***The Sum of Ksh. 799,000/= cash seized from the Defendants be forfeited to the Plaintiff.*** 5. ***There be liberty to apply.*** 6. ***The injunctive orders issued by this court on the 1st August, 2023 be lifted.”*** 7. This being a consent order, the same was well within the knowledge of the Respondents who duly signed it. The order is clear and unambiguous and the only issues for determination is whether the Respondents acted in breach of the order and whether that conduct was deliberate. 8. It is not in dispute that the Respondents defaulted in meeting paragraph i and ii of the Consent Order. However, that default was contemplated in paragraph iii of the Order which provided a fall back clause. Evidence placed before the court shows that the Respondent were unable to meet condition i of the consent order and offered to forfeit LR No. South Sakwa/Barkowino/6934 vide letter dated 29 August 2024 for sale by public auction. The default having been contemplated, the Consent Order was self executing by providing for a remedy under paragraph iii and v. 9. Turning to paragraph iii of the consent order, evidence has been placed before the court to show that the property has been completely vandalized. The Status Report dated 3 October 2025 annexed to the application shows that a re-inspection of the Hydeout Rivera Hotel carried out on 16 September 2025 clearly demonstrates that the property has been completely vandalized, demolished and destroyed resulting in near total loss of structural, architectural and severe defects across the property. 10. The property was under the management of the 1st Respondent who deponed in his Replying Affidavit that the he is a Director of the 2nd Respondent. The 1st Respondent has not offered any explanation or contested the status of the property as per the Status Report filed. The Respondents were fully aware of the terms of the consent order and their duty and obligation in relation to management of the Hotel. They had a duty to inform the Applicant of any change in circumstances that materially affected the property within a reasonable time. Having offered the Hotel knowing that it was built on ancestral land, the Respondents are *estopped* from claiming inability to manage on grounds that its family land. 11. The court is satisfied on the evidence before it that the Respondents acted in deliberate breach of the consent order in relation to the 2nd Respondent as herein before stated. The court finds the 1st and 2nd Respondents in contempt of court order dated 16 July 2024. ***Ii. Whether the court should grant the orders sought*** 1. Turning to the second issue, the Applicants seek for grant of orders listed as prayer 3,4, and 5 of the Notice of Motion Application dated 29 April 2026. As pointed out by this court in its Ruling dated 22 November 2024, the said application seek to set aside and/or vary the consent judgement. Such a move would require a substantive application for review and/or variation setting out the grounds thereof. However, there is no competent application before court to warrant consideration. Without such an application, the court is unable to consider variation. 2. The terms of the consent order allow parties to apply as appropriate. This court reiterates the holding in ***Flora N Wasike vs Destimo Wamboko* (Supra)** where the courtstated :- ***“It is now settled law that a consent judgment or order has a contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”*** 1. That window remains open for as long as the order remains undischarged. ***Final Disposition*** 1. In view of the above, the court makes the followings orders; 2. Notice of Motion Application dated 29 April 2026 partially succeeds in terms of prayer 2. 3. The 1st and 2nd Respondents are convicted of contempt of court. Sentencing is hereby reserved for 22 September 2026. 4. The 1st Respondent and all Directors of the 2nd Respondent shall attend personally and physically before the court on 22 September 2026. 5. Summons requiring attendance of the Respondents personally shall issue to and be served by the Applicant who shall also file a return of service. 6. The Applicant is at liberty to apply as appropriate. 7. Each party shall bear its own costs. 8. Right of appeal within 14 days. Signed, Dated And Delivered virtually at Nairobi on this 30th day of July 2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**