https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3062

Njoroge v Mbuco & 4 others (Environment and Land Case E019 of 2022) [2026] KEELC 3062 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3062 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Case E019 of 2022 SM Kibunja, J May 21, 2026 Between Gerald Mbugua Njoroge Plaintiff and Francis Muthike Mbuco 1st Defendant Peter Njogu Kamenya 2nd Defendant Isaac Karani Kariuki 3rd Defendant Kenya National Highway Authority 4th Defendant National Construction Authority 5th Defendant Ruling [Notice of Motion dated 30th November 2023] 1.The plaintiff filed the application dated 30th November 2023 seeking for among others:a.An order that the 1st to 3rd defendants, their agents, servants or anyone claiming through them to be detained in prison for a period of six (6) months for disobedience of court orders of 9th May 2023.b.An order that the 4th defendant has failed to comply with the orders of 9th May 2023, and its Chairman be detained in prison for a period of six (6) months for disobedience of the said court orders.The application is premised on the five (5) grounds on its face marked (a) to (e), and supported by the affidavit of Gerald Mbugua Njoroge, plaintiff, sworn on 30th November 2023.Simply put, the case of the plaintiff is that the court issued injunction orders on 9th May 2023 against the 1st to 3rd defendants and directed the 4th defendant to ensure its compliance.That the 1st to 3rd defendants have disobeyed the said orders by continuing to construct and block the access road, and the 4th defendant has failed to ensure compliance and hence this application. 2.The application is opposed by 3rd and 1st defendants through the replying affidavit of Isaac Karani Kariuki, 3rd defendant, sworn on 29th January 2024 deposing inter alia that the 1st to 3rd defendants were not served with the orders of 9th May 2023; that they got to know of the ruling when it was served with the instant application; that they have not built any structures that would interfere with the plaintiff’s access to Kabare/Nyangati/1494; that no evidence has been tendered to confirm that they are undertaking developments on the road reserve adjacent to the plaintiff’s land, and the only buildings are those that existed before the orders were issued; that the application should be dismissed and main suit set down for hearing. 3.The plaintiff filed a supplementary affidavit sworn on 19th March 2024, inter alia deposing that the defendants had admitted having structures on the road reserve and should have removed them after the court order but have not done so; that defendants were represented by counsel and cannot demand to be served with an order issued in proceedings where they are parties; that the ruling was delivered through notice to all parties and the defendants’ ignorance is no defence. 4.The court issued directions on filing and exchanging submissions on 15th May 2025 and 15th July 2025. The learned counsel for the plaintiff and 1st to 3rd defendants filed their submissions dated the 11th July 2025 and 31st July 2025 respectively that the court has considered. 5.The issues arising from the application for the court’s determinations are as follows:a.Whether the plaintiff has proved disobedience of the court order by the 1st to 4th defendants, or any of them.b.Who pays the costs? 6.The court has considered the grounds on the notice of motion, affidavit evidence, submissions by the learned counsel, superior court decisions cited thereof and come to the following conclusions:a.That from the ruling delivered on 9th May 2023 that is attached to the supporting affidavit, that is in the same terms as the copy on record, it is indeed apparent that the court issued the following orders:"1.That pending the hearing and determination of this suit, the 1st, 2nd and 3rd defendants, their agents, servants, be and are hereby restrained by way of a temporary injunction from constructing, remaining in, working on or in any other manner interfering with the road reserve and access road adjacent/in front of the plaintiff’s/applicant’s land Parcel No. Kabare/Nyangati/1494.2.The 4th defendant to ensure compliance of this order.3.The 1st, 2nd, and 3rd defendants to bear the costs of this application.”b.It is also apparent from the ruling dated 9th May 2023 that it was delivered in the absence of all parties and their counsel.The 3rd defendant has in the replying affidavit deposed that the ruling was not served upon the 1st to 3rd defendants and that they only got to know about it after it was served through the instant application.The plaintiff has replied that the defendants cannot feign ignorance of the ruling as they are represented by an advocate. It is therefore important to establish whether the 1st to 4th defendants were aware of the orders in the ruling delivered on 9th May 2023 before being served with a copy attached to the instant application.c.The 1st to 3rd defendants were evidently not present in person or through counsel when the ruling was delivered on 9th May 2023.Likewise, the plaintiff and his counsel were not present and have not disclosed when they got to know that it had been delivered. Knowledge of the terms a party is being accused of disobeying is important before the party can be said to be in contempt.In the case of Lukano (Suing as the legal representative of the estate of Evans Siema Lukano (Deceased)) versus Director of Occupational Health and Safety; Jamly Services & Another (Interested Parties) [2023] KEHC 21435 (KLR), the court held inter alia as follows at paragraphs 4(c), (e) and (g):“(c)That judgement or order in question must be served on the person required to do or not to do the act in question unless the court expressly dispensed with personal service;(e)Judgements and orders must be served personally;(g)The court may also dispense with personal service if it thought it was just to do so or may make an orders in respect of service by an alternative method or an alternative place.”That as the defendants claim that the ruling delivered on 9th May 2023 was not brought to their attention before being served with the instant application dated 30th November 2023 has not been disputed or rebutted through evidence to the contrary being tendered, and it being a fact they were absent and not represented when the ruling was delivered, they could not reasonably have been expected to be obey or be aware of what had not been served upon them as required by the law.d.The ruling dated 9th May 2023 was in respect of the application dated 12th May 2022. That application sought for temporary injunction pending the hearing and determination of the suit. The application did not have a prayer for demolition of the structures, unlike the plaint dated 12th May 2022 that has a prayer (b) for demolition in addition to permanent injunction and costs.The defendants have in their submissions, indicated that their understanding of the orders of 9th May 2023 was that status quo was to be maintained, pending the hearing and determination of the suit.From the supplementary affidavit, the plaintiff appears to believe that the orders of 9th May 2023 required the 1st to 3rd defendants to remove the structures complained of and that they had through the replying affidavit admitted not having do so and therefore were in contempt. That was clearly a misapprehension on the plaintiff’s part, as the said orders did not order any demolition of structures by the 1st to 3rd defendants.e.It follows, therefore, that the plaintiff has failed to establish that the orders of 9th May 2023 required demolition of any structures. He has also failed to show that the 1st to 4th defendants had knowledge of the orders in the ruling delivered on 9th May 2023 or that they were in disobedience of the said orders. His application, therefore, fails.f.Under section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, costs follow the events unless where the court is convinced to order otherwise on good grounds. In this case, the plaintiff has failed in the application and I see no reasons why he should not meet the costs for 1st to 3rd defendants who opposed the same successfully. 7.Flowing from the above determinations, the court finds and orders as follows:a.That the contempt application dated 30th November 2023 is without merit.b.That the said application is dismissed with costs to the 1st to 3rd defendants.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 21ST DAY OF MAY, 2026.S. M. KIBUNJAELC JUDGEIn the presence of:Plaintiff – Mr. Kiplimo for Mugambi.Defendants – No Appearance.Charles/Kinyua - Court Assistant.