https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3255

Gilbert & 3 others v M’Mungania & 2 others (Environment and Land Appeal E039 of 2024) [2026] KEELC 3255 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3255 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E039 of 2024 JO Mboya, J May 28, 2026 Between Charity Muthoni Gilbert 1st Appellant Eric Munene Kirimi 2nd Appellant Dennis Murithi Kirimi 3rd Appellant Collins Kirimi 4th Appellant and Jacob Kirimi M’Mungania 1st Respondent Gerald Gikundi M’Rukaria 2nd Respondent Josphat Mugira M’Rukaria 3rd Respondent Ruling 1.Before me is the Notice of Motion Application dated the 04.05.2026; brought pursuant to the provisions of Sections 1A, 1B, 3A and 63 [e] of the Civil Procedure Act, Chapter 21 Laws of Kenya; Section 5 of the Judicature Act, Chapter 8 Laws of Kenya; and Article 159 [2] [d] of the Constitution, 2010; and wherein the appellants/applicants [hereinafter referred to as the applicants] have sought various reliefs. 2.The reliefs sought vide the application are:i.That this application be certified as urgent and service be dispensed with in the first instance.ii.That pending hearing inter parties, this Honourable court be pleased to restrain the 2nd and 3rd respondents, their agents, proxies and/or any persons acting on their behalf from threatening, intimidating, or harassing the Appellants, subjecting or attempting to subject the Appellants to “kithiri” or any cultural or extra judicial sanctions, demanding any payment contrary to the judgment of the court and or interfering in any manner with L. R Kiirua/Ruiri/2083.iii.That the 2nd and 3rd Respondents be cited for contempt of court for willful disobedience of the Judgment and decree delivered on 24.03.2026.iv.That upon search citation, the 2nd and 3rd Respondents be committed to civil jail for a period not exceeding six [6] months and/or be fined as this court may deem fit.v.That the Officer Commanding Station [OCS] Ruiri Police Station do ensure compliance.vi.That costs of this application be borne by the Respondents. 3.The subject application is premised on various grounds, which have been enumerated in the body thereof. The grounds are: The applicants herein filed and mounted the instant appeal; the appeal was heard disposed of vide judgment delivered on the 24.03.2026; the court proceeded to and allowed the appeal; the court ordered/directed that LR. No. Kiirua/Ruiri/2083 [the suit property] is held on trust for the applicant by the 1st Respondent; the sale of the suit property to 2nd and 3rd respondent was declared unlawful; and the applicants therefore have lawful rights over and in respect of the suit property. 4.Furthermore, the Applicants have contended that following the delivery of the judgment the 2nd and 3rd respondent have taken actions, which are said to be in contempt of the judgment of the court. In particular, it has been contended thus: The 2nd and 3rd respondent have since lodged a complaint with Nchuri Ncheke Elders; the Nchuri Ncheke elders have since summoned the applicants; the 2nd and 3rd respondents are purporting to reopen a concluded matter; and the actions of the 2nd and 3rd respondents are contrary to orders of the court. 5.Additionally, it has been contended that the 2nd and 3rd respondents have also continued to harass, threaten and intimidate the applicants. The intimidation is stated to include the applicants being forced to take an illegal oath, namely; “Kithiri” oath under the Ameru Customs. To this end, it has been contended that the actions of the 2nd and 3rd respondents are unlawful and constitute intimidation. 6.The subject application is supported by the affidavit sworn on the 04.05.2026. The deponent of the affidavit [Charity Muthoni Gilbert] has reiterated the contents of the grounds contained in the body of the application. In addition, the deponent has annexed copies of inter alia the summons from Nchuri Ncheke and a response from her Advocates opposing the summons in question. 7.The respondents were duly served. However, the respondents did not file any response to the application. Nevertheless, learned counsel Mr. Gikunda Anampiu appeared before the court and sought leave to oppose the application on the basis of law. The request by learned counsel was allowed and his submissions are on record. I shall revert to the submissions canvassed on behalf of the respondents shortly. 8.The application came up for hearing on the 28.05.2026; whereupon learned counsel for the parties intimated to the court that same were ready to proceed with the hearing of the application. To this end, the court issued directions and the application was duly canvassed. 9.Learned counsel for the applicants adopted the grounds contained in the body of the application; reiterated the contents of the supporting affidavit and the annextures thereto; and thereafter highlighted four [4] key issues. The issues are: The court issued a lawful Judgment on the 24.03.2026 and the terms of the judgment were explicit; the 2nd and 3rd respondents have since mounted a complaint with Nchuri Ncheke over and in respect of the same subject matter; Nchuri Ncheke have since issued summons to the applicants; Nchuri Ncheke are kern to administer an illegal oath [kithiri] upon the applicants; and the actions by the 2nd and 3rd respondents constitute and amounts to contempt of court. 10.Moreover, learned counsel for the applicants have submitted that the 2nd and 3rd respondents have also subjected the applicants to intimidation, harassment and threats, in an endeavor to force the applicants to refund the purchase price that was paid in respect of the suit property. However, it was posited that the demand for refund of the purchase price is contrary to the judgment of the court and thus constitute[s] contempt. 11.Flowing from the foregoing, learned counsel for the applicants has thereafter invited the court to find and hold that the 2nd and 3rd respondents are guilty of contempt of court and thus same deserves to be cited and punished for contempt. Furthermore, learned counsel for the applicants have also invited the court to issue/grant preservatory orders to bar/prohibit the 2nd and 3rd respondents from inter alia intimidating; harassing; and threatening the applicants. 12.Learned counsel for the respondents opposed the application primarily on the questions of law. Learned counsel raised three [3] key issues. The issues are: The issues raised at the foot of the subject application do not follow within the jurisdiction of this court insofar as same are criminal in nature; the applicants have not established contempt to the requisite standard; and the application constitute and amounts to an abuse of the due process of the court. 13.It was the submission by learned counsel for the respondent that the issues of intimidation, harassment and threats [if any] are criminal in nature and thus the applicants herein ought to have lodged/mounted complaints with the police. Nevertheless, it has been contended that no such complaints have been lodged with the police. Moreover, it was posited that this court has no jurisdiction to investigate the commission of criminal offences [if any]. 14.Additionally, it was submitted that the issues of Nchuri Ncheke elders and the summons [if any] issued to the applicants are outside the scope of the subject matter. In any event, it was submitted that this is a court of law and same must be guided by the pleadings and not otherwise. 15.Finally, it was submitted that the question of refund of the purchase price which has been alluded to by/on behalf of the applicants, was not part of the Judgment of the court. Further, and in addition, it has been submitted that this court did not issue any order to restrain the 2nd and 3rd respondents from seeking refund of the purchase price. 16.As a result of the foregoing, learned counsel for the respondent implored the court to find and hold that the subject application is not only premature, but constitutes an abuse of the due process of the court. The court was thereafter invited to dismiss the application and to award costs to the respondents. 17.Having reviewed the application; the supporting affidavit thereto; and upon taking into account the submissions canvassed by/on behalf of the respective parties, three [3] key issues arise for consideration and determination. The issues are: Whether this court is seized of the jurisdiction to interrogate allegations that touch on commission of [sic] criminal offences or otherwise; whether the application constitutes an abuse of the due process of the court; and whether [if at all] the applicants have established contempt as against the 2nd and 3rd respondents. 18.Regarding the first issue, it is imperative to observe that the crux of the application before the court touches on and concerns allegations of: intimidation; harassment; and threats against the applicants. It has been contended that the threats in question have been propagated by the 2nd and 3rd respondents. 19.Furthermore, it has been posited that the threats; intimidation and harassment, which are complained of have been propagated vide a compliant which was mounted with the Nchuri Ncheke Elders and who have thereafter issued and served summons upon the applicants. For good measure, the applicants have proceeded to and annexed the summons from Nchuri Ncheke as annextures CMG – 2, to the supporting affidavit. 20.Additionally, it has also been contended that the threats; intimidation and harassments, also include the applicants being forced to take an illegal oath, namely; “Kithiri’ oath under the Ameru community. The applicants have posited that the threats to administer the impugned oath are illegal and amounts to coercion. 21.Based on the foregoing allegations, the applicants are now before this court seeking that the court does interrogate the complains touching on threats; intimidation; and harassment. The question that does arise is whether this court has the necessary machinery and jurisdiction to undertake investigation into the allegations and thereafter authenticate the veracity or otherwise of the allegations. 22.Put differently, the question that does arise is whether this court can engage itself with matters that touch on and concerns [sic] commission of criminal offences, which are cognizable and provided for under the Penal Code, Chapter 63 Laws of Kenya. 23.I beg to point out that the jurisdiction of this court is circumscribed. The scope of the jurisdiction is provided for in terms of Article 162 [2] [b] of the Constitution, 2010, and read together with Section 13 of the Environment and Land Court Act, 2011. Pertinently, the jurisdiction of this court relates to matters touching on and concerning ownership of; and title to land. The jurisdiction is not unlimited. The jurisdiction does not include interrogation of matters which are criminal in nature. [See the holding in Republic v Chengo & 2 others [2017] KESC 15 (KLR). 24.Importantly, it is apposite to remind the applicants that matters pertaining to commission of cognizable offences or allegations of such offences [where necessary] can only be dealt with and investigated by the Inspector General of Police and thereafter acted upon by the director of Public Prosecutions. [see Article 243 and 244 of the Constitution, 2010]. 25.Before concluding on this issue, it is imperative to underscore that the jurisdiction of a court is derivable from the Constitution or the constitutive charter [the operative statutes] that creates the court. Where a particular court is not expressly granted jurisdiction to perform a certain act, it is said that the court is devoid and divested of jurisdiction. In such a situation, the court is obliged to down its tools. 26.In the case of Samuel Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme court highlighted the question of jurisdiction in the following manner:68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law. 27.Next is the issue of whether the subject application constitute[s] an abuse of the due process of the court. The applicants are very aware that this court handled and dealt with an appeal. Furthermore, that applicants are also aware that the scope and jurisdiction of this court while dealing with an appeal is circumscribed and limited to the issues that were canvassed in the lower court. [See Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya]. 28.Nevertheless, the applicants are before the court and same are seeking to introduce matters that were neither the part of the pleadings or the evidence that were canvassed in the lower court. The issues that the applicant seek to canvass are:i.The complaint before Nchuri Ncheke Elders.ii.The summons by Nchuri Nchekeiii.The threats of an administration of an illegal oath ‘Kithiri’iv.The demand for refund of the purchase price; andv.Threats, intimidation and harassments. 29.This court is obligated to deal with and address only matters that were properly placed before it. Furthermore, the court must avoid being dragged into mud by a party or parties, who are keen to settle other scores or grudges that fall outside the ambit of the court. I beg to remind myself of the doctrine of departure as highlighted vide the provisions of Order 2 Rule 6 of the Civil Procedure Rules, 2010. 30.It is my humble view, that the applicants herein have raised and canvassed the named issues, merely to vex the court and to misuse the right of access to justice. The applicants ought to be reminded that the right of access to justice does not include raising of irrelevant issues before a court. In addition, it also suffices that parties must learn to channel their grievances to the appropriate forum, as stipulated under the Constitution or the law. 31.Where a party propagates a cause of action that does not fall under the mandate of a particular court, and remains adamant, like in the instant case, the conduct in question falls within the purview of what constitutes an abuse of the due process of the court. 32.In the case of Satya Bhama Gandhi v Director of Public Prosecutions& 3 others [2018] KEHC 6100 (KLR), the court [Per Mativo – Judge as he then was] states as hereunder:29.This obstacle to the efficient administration of justice is not immovable. Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused. Tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which such abuse cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception, fraud and blatant abuse of judicial processes.30.All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.[20]The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings. These are, first, that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the Court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.[21]31.The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.[22]The obligation on a court is to provide a fair trial in accordance with law. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained. 33.Without belaboring the point, it is my finding and conclusion that the subject application clearly constitutes and amounts to an abuse of the due process of the court. Needless to state that what constitutes an abuse of the due process of the court is incapable of exhaustive definition. In any event, it is a determination that is undertaken on a case by case basis. [See the decision of Supreme court in Ruttongot Farm Limited versus Kenya Forest Service [2018] eKLR]. 34.Lastly, and for the sake of completeness, I wish to address the question whether the allegations that underpin the subject application meet the threshold of contempt of court. Suffice it to state that contempt of court comprises of acts; activities; actions; or omissions which are contrary to and in contravention of the orders of the court. The omissions or actions complained of must flow from or relate to the matter that was dealt with the court. The complaints must not be at large. Same must not flow from issue[s[ that are alien to what was before the Court. 35.Nevertheless, in respect of this matter, there is no gainsaying that this court did not address itself to the question of any complaint being mounted with Nchuri Ncheke Elders; validity of summons being issued by the said Nchuri ncheke Elders; the purported administration of illegal oath, namely; “kithiri”; intimidation; threats; or harassments. These are issues which constitute a separate and distinct cause of action. In addition, the grievances are outside the scope of the jurisdiction of this court. 36.Quite clearly, the allegations which are outside the dispute that was dealt with by the court, cannot be relied upon to underpin contempt proceedings. Notably, contempt must relate to the issues that were before the court. Moreover, even where the complaints alluded to relates to the issues that were before the court, the allegations must be proven to the intermediate standard; and vague allegation[s] cannot suffice. 37.In the case of Mutitika v. Baharini Farm Ltd [1985] eKLR, the Court of Appeal addressed its mind to the fact that contempt proceedings ought to be invoked as a last resort. In addition, the court also highlighted the applicable standards to be deployed in matters pertaining to contempt. 38.The court stated thus: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. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi – criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be provedwith such strictness of proof ... as is consistent with the gravity of the charge ...”The principle propounded in Re Maria Annie Davies [1889] 21 QBD 236, and 239, thatRecourse ought not to be had to process of contempt in aid of a civil remedy where there is any other method of doing justice. The observations of the later Master of the Rolls in the case of Re Clement seem much in point: ‘It seems to me that this jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is not other mode which is not open to the objection of arbitrariness, and which can be brought to bear upon the subject. I say that a judge should be most careful to see that the cause cannot be mode of dealing with persons brought before him. 39.In my considered view, the applicants herein have neither met nor satisfied the threshold set to warrant citation and punishment for contempt. Simply put, the applicants herein have failed to discharge the burden of proof attendant to contempt proceedings. Conclusion 40.The Applicants were enjoined to appreciate the nature of the complaints that were being placed before this court. In addition, it behooved the applicants to interrogate whether the complaints/grievances [if any] fell within the jurisdiction of this court. 41.Be that as it may, I have interrogated the grievances and I am afraid that the determination of same lie elsewhere, but not within the court. It behooves the applicants to discern the appropriate pathway provided for under the law. Final orders: 42.Flowing from the analysis contained in the body of the ruling, the final orders that commend themselves to the court are:i.The Application be and is hereby Dismissed.ii.Costs of the Application be and are hereby awarded to the Respondents.iii.The costs shall be agreed upon and in default be taxed in the conventional manner. 43.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMs. Bett holding brief for Mr. Kiogora Arithi for the Appellants/Applicants.Mr. Gikunda Anampiu for the Respondents