HMI v KBH (Civil Appeal (Application) E109 of 2022) [2026] KECA 1498 (KLR) (24 July 2026) (Ruling)

HMI v KBH (Civil Appeal (Application) E109 of 2022) [2026] KECA 1498 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KECA 1498 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E109 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between HMI Applicant and KBH Respondent (Being an application against the Judgment of the High Court of Kenya at Mombasa (Onyiego, J.) delivered on 21st October 2022 in HC Family Appeal No. E010 of 2022) Ruling 1.The subject matter in dispute between the parties is the custody of JRH (the minor) born of the applicant, a Kenyan Citizen, and the respondent, a British National. The custody battle, under the first appeal in Mombasa High Court Family Appeal No. E010 of 2022 was heard and determined on 21st October 2022 (Onyiego, J.). In relation to access and custody of the minor, the learned Judge ordered that:“a)actual custody of the minor herein is awarded to the appellant (respondent herein) with unlimited access to the respondent; andb)that the respondent (applicant herein) shall have the child during alternate weekends starting from 4.00 p.m. on Friday and return the child on Sunday at 4.30 p.m. same weekend.” 2.Those orders aggrieved the respondent and, as a consequence, he filed an appeal to this Court citing five grounds, which primarily faulted the findings of the learned Judge that he was not a suitable parent to be given custody of the minor. This Court (Gatembu, Lesiit & Odunga, JJ.A.) determined at length what would be the best interest of the child in the circumstances by a judgement delivered on 23rd February 2024. The Judgment and the consequential orders of Onyiego, J. were set aside and the judgement and orders of Hon. Lucy Sindani delivered on 21st February 2022 in Tononoka Children Court Case No. 435 of 2019, was reinstated on the terms that:“1.The judgment of the High Court delivered on the 21st October 2022 by Onyiego, J. in Mombasa Family Appeal No. E010 of 2022 and all its consequential orders be and is hereby set aside;2.The Judgment and orders of Hon. Lucy Sindani delivered at Mombasa Tononoka Children Court Children Case No. 435 of 2019 delivered on 21st February 2022 be and is hereby re-instated. For the avoidance of doubt:a.That this Court is not bound by the doctrine of res judicata thus not barred to determine the issue on custody on merit.b.That legal custody of the child to be joint between the plaintiff (read respondent) and the defendant (read appellant).c.That the defendant (appellant) to have physical/actual custody of the child while the plaintiff (respondent) to have physical supervised access to the child on alternate weekends at Mtwapa Police Station at the gender desk from 11.00am to 3.00pm.During this period the plaintiff (respondent) is warned against any kind of drama and commotion in the presence of the child. The plaintiff to access the child peacefully as a mother without abusing and talking to the defendant (appellant) in any manner.d.That the plaintiff (respondent) is also allowed to continue with virtual access to the child on the days that she does not have physical access but is restrained from using abusive language to the defendant in the presence of the child while having the said access. The plaintiff (respondent) to talk to the child in a peaceful manner and in the event that there is any damaging information being passed by the plaintiff (respondent) to the child then the call to be disconnected.e.That the above access to go on for a period of one year from the date of this judgment and in the event that the plaintiff(respondent) has been maintaining peace, order and decorum during these moments of access then either party can apply for review of access.f.That this Court allows the defendant to provide for the child fully and the plaintiff (respondent) be at liberty to chip in at any time.g.That this Court lacks jurisdiction to deal with the prayer by the defendant in respect of property named Mtwapa Title number Kilifi/Mtwapa/2xx5. The defendant (appellant) to approach a court with proper jurisdiction to handle.h.That prayers f, g, h and i of the defendant’s(appellant) counterclaim are dismissed.i.That neither the plaintiff (respondent) nor the defendant (appellant) is allowed to leave the jurisdiction of Kenya with the child without the consent of the other or order of the court until the child is 12 years old and able to understand better what is going on. Any party who wishes to leave the country with the child when he attains the age of twelve should also do so with the consent of the other party or by court’s order.j.That the defendant’s (appellant) passport deposited in court to be released to him.3.This being a case brought on behalf of the child minor, each party do bear their own costs of the appeal.” 3.In her application, the applicant seeks to cite the respondent for contempt of the above orders by way of a Notice of Motion dated 24th April 2024 brought under Sections 1A, 3A and 80 of the Civil Procedure Act, Cap. 21, Orders 45 and Order 51 of the Civil Procedure Rules, 2010 and the Contempt of Court Act. The applicant is seeking a raft of 13 prayers, most of which are framed as grounds on which the application is based. We shall therefore only set out the relevant prayers, which are that:i.Spent.ii.That this Court be pleased to issue an order to the respondent to attend Court and show cause why he should not be punished for contempt of court orders issued by this Court vide a ruling dated 23rd February 2024 directing him to allow the applicant to have supervised physical access of the minor at Mtwapa Police Station at the gender desk from 11.00 a.m. to 3.00 p.m. every alternate weekend.iii.That this Court be pleased to issue an order directing the respondent to appear with the minor before this Court to confirm the safety and well-being of the minor.iv.That this Court be pleased to review its orders on physical custody of the minor and grant them to the applicant herein.v.That this Court be pleased to issue an order that this matter be heard afresh at Tononoka Children’s Court.vi.That this Court be pleased to order that the Officer Commanding Station at Nyali Police Station be directed to assist in enforcing Order No. (ii) above. 4.In her supporting affidavit sworn on 24th April 2024, she deposed that, despite the order that she and the respondent have joint and legal access to the minor, she has not been able to see her son either virtually or physically, and that the whereabouts of her son are unknown to her; that the respondent is almost 70 years old and is regarded as a senior citizen, and that it would be impossible for him to take care of a minor of tender years; and that the respondent’s physical address is unknown; and that he failed to declare who stays with the minor and the school which he attends. The applicant pleads that this Court makes an alternative order that the matter be heard afresh at Tononoka Children’s Court as she did not have representation of counsel at the initial hearing; and thus prays that the orders sought be allowed as prayed. 5.The respondent opposed the application by filing a Preliminary Objection dated 21st January 2025 on the grounds that:“The Court in which the application dated and filed on 24th April 2024 is filed is functus officio as per the Court’s orders given on 30th September 2021.a)The Honourable Court has finalized its mandate as a second appellate Court to completion and given a recourse for litigants by reinstating the orders of the trial court.b)The doctrine of functus officio states that once the court has made its decision, it is final and conclusive.c)The application herein is an abuse of court process and the same ought to be raised in the appropriate court.” 6.We heard this application on 28th January 2026. Ms. Chengo appeared for the applicant while there was no attendance by learned counsel Mr. Lawrence Obonyo for the respondent despite service with a hearing notice on 9th January 2026. Notably, counsel for the respondent did not file written submissions. 7.The applicant’s submissions are dated 27th January 2025. Counsel for the applicant urged us on the persuasive decision of the High Court in Joseph Koome M’mukira & Another vs. Charles Magiri & Another (2024) KEELC 5736 (KLR), which has been adopted by this Court and the Supreme Court on the principles and/or threshold required to secure a conviction of a contemnor, being: that the terms of the order should be clear, unambiguous and binding on the Citees; that the Citees had knowledge of, or proper notice of the terms of the order; that the Citees acted in breach of the terms of the order; and that the conduct of the contemnor was wilful and deliberate. To the applicant, the foregoing threshold has been met, and accordingly, this Court ought to hold the respondent to be in breach of the Court orders. 8.The applicant submitted that failure of the respondent to file a replying affidavit to controvert issues of fact entails that the claims made by the applicant are uncontroverted. The High Court’s decision in Nyakundi & 68 Others vs. Principal Secretary Department of Planning, Ministry of Devolution & Planning & Another (2016) KEHC 467 (KLR) was cited for the proposition that a party who wishes to controvert issues of fact must file a replying affidavit. Further reliance was placed on the decision of this Court in Shunkur vs. Rigogo Chonjo Company Limited & 3 Others (Sued as the Chairman, Treasurer and Secretary of Chepnyaliliet Self Help Group Respectively) (2023) KECA 917 (KLR) where the Court was of the view that the statements of grounds of opposition or a Notice of Preliminary Objection only relate to issues of law. Thus, the applicant submitted that the burden of proof shifted to the respondent to prove otherwise, the applicant having presented documentary evidence. 9.In response to the respondent’s Notice of Preliminary Objection, the applicant submitted that, by filing the instant application, she was not re-opening the case, but was seeking to enforce compliance with this Court’s orders. The applicant also clarified that she would be pursuing only the prayers that relate to contempt of the Court’s orders. 10.We have considered the application, the response thereto and the submissions by the applicant. The issue that falls for our determination is whether the Court should cite the respondent for disobedience of this Court’s orders of 23rd February 2024. This issue will be determined alongside the respondent’s objection that this Court is functus officio having rendered its judgment on 23rd February 2024. 11.To begin with, one of the provisions of the law cited by the applicant is the Contempt of Court Act. This Statute was declared unconstitutional on 9th November 2018 by Chacha Mwita, J. (as he then was) in Kenya Human Rights Commission vs Attorney General; Law Society of Kenya (Interested Party) (2018) KEHC 9656 (KLR). This remains to be the position to date as our research does not lead us to any decision that overturned this Judgment on appeal. 12.The statutory basis of contempt of court proceedings insofar as the Court of Appeal and the High Court are concerned, is Section 5 of the Judicature Act, Cap. 8 and Section 63(c) of the Civil Procedure Act, Cap 21. Of relevance to this case is Section 5 of the Judicature Act which provides:(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 that power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in exercise of the original criminal jurisdiction of the High Court. 13.This Court in Shimmers Plaza Limited vs. National Bank of Kenya (2015) KECA 945 (KLR) had this to say in relation to the applicability of Section 5 of the Judicature Act:"This provision subjects the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England. The law governing the justices in England previously was subject to common law and Order 52 of the Supreme Court Rules. However, England enacted the Contempt of Court Act of 1981 which supplements its common law contempt of court offences. The prevailing law of contempt in England is now found in the Contempt of Court Act of 1981 and Part 81 of the procedure in the Civil Procedure (Amendment No. 2) Rules, 2012 that replaced Order 52 of the Supreme Court Rules for contempt proceedings in the Supreme Court of England." 14.The fall-back therefore, under our jurisdiction, is the English law under the Contempt of Court Act of 1981. Part 81 as provided under Rule 81.1 is limited to contempt of court, penal, contempt and disciplinary provisions of the County Courts Act, 1984, and allows a person to be found:(a)guilty of contempt of court; or(b)punishable by virtue of any enactment as if that person had been guilty of contempt of the High Court, to pay a fine or to give security for good behaviour, as it applies in relation to an order of committal. 15.In Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 others (2014) KECA 840 (KLR), this Court stated as follows:“Following the implementation of the famous Lord Woolf's Access to Justice Report, 1996', the Rules of the Supreme Court of England are gradually being replaced with the Civil Procedure Rule, 1999. Recently on 1st October, 2012 the Civil Procedure (Amendment No. 2) Rules, 2012 came into force and part 81 thereof effectively replaced Order 52 of the Rules of the Supreme Court of England in its entirety.Part 81 (Applications and proceedings in relation to contempt of Court) provides different procedures for four different forms of violations.Rules 81.4 relates to committal for 'breach of a judgment, order or undertaking to do or abstain from doing an act.’Rules 81.11 relates to committal for 'interference with the due administration of justice'. (Applicable only in criminal proceedings)Rules 81.16- relates to committal for contempt 'in the face of the court.' andRules 81.17- relates to committal for 'making false statement of truth or disclosure statement.'As per Rule 81.1 the amendment provides the procedure in contempt of court proceedings which applies in the Court of Appeal, the High Court and county courts in England.’’In this case Rule 81.4 is applicable.Rule 81.10 sets out the procedure for filing a contempt application is as follows: -(3)The application notice must—a.set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; andb.be supported by one or more affidavits containing all the evidence relied upon.(4)notice and the evidence in support must be Subject to paragraph (5), the applicationserved personally on the respondent.(5)The court may—a.dispense with service under paragraph (4) if it considers it just to do so; orb.make an order in respect of service by an alternative method or at an alternative place.’’ 16.For good order in the administration of justice, individuals who, and institutions which, submit themselves to the judicial process, have a duty to obey the orders emanating therefrom so as to preserve and uphold the authority and dignity of our courts. In the Shimmers Plaza Case (supra), this Court authoritatively cited the English decision of Hadkinson -vs- Hadkinson, (1952) ALL ER 567 in which Romer, L.J. stated:"It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that 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 an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck –vs- Cremer (1) (1 Coop. temp.Cott 342):-‘A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.’Further, this Court in Refrigeration and Kitchen Utensils Ltd. -vs- Gulabchand Popatlal Shah & Another - Civil Application No.39 of 1990 (UR) held: -‘…It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times.’” 17.We then find and hold that, although the respondent raised the objection that this Court having delivered its Judgment was functus officio and could not therefore confer upon itself the jurisdiction to hear this application, is not based on any law. As we observed herein above, even in our jurisdiction, the court issuing the orders in question, unless for exceptional circumstances, is the court conferred with powers to punish the contemnor. In the same vein, this Court having issued the orders arising from its judgment, is conferred with powers to punish whoever it is alleged disobeyed those orders. 18.In contempt proceedings, the standard of proof, which is on a balance of probabilities, is higher than in civil proceedings. This is because contempt proceedings are in the nature of criminal proceedings. Furthermore, if a person is held to be in contempt of court orders, there lies the likelihood of deprivation of his or her right to liberty in the event of a conviction. Therefore, a court should satisfy itself that service was effected upon the contemnor to notify them of the proceedings. In Woburn Estate Limited vs. Margaret Bashforth (2016) KECA 472 (KLR), this Court cited the decision of Lord Denning in Re: Bramblevale Ltd (1970) 1 CH 128 at page 137 that:“A contempt of court is an offence of criminal character. A man may be sent to prison for it. It must be satisfactorily proved showing that when the man was asked about it, he told lies. There must be some further evidence to incriminate him.” 19.As per Rule 81.5 of the Contempt of Court Act of 1981, which governs the service, the judgment and order must carry a penal notice as follows:1.Unless the court dispenses with service under rule 81.8, a judgment or order may not be enforced under rule 81.4 unless a copy of it has been served on the person required to do or not do the act in question, and in the case of a judgment or order requiring a person to do an act –a)the copy has been served before the end of the time fixed for doing the act, together with a copy of any order fixing that time;b)where the time for doing the act has been varied by a subsequent order or agreement under rule 2.11, a copy of that subsequent order or agreement has also been served;c)Where the judgment or order was made under rule 81.4(5), or was made pursuant to an earlier judgment or order requiring the act to be done, a copy of the earlier judgment or order has also been served.2.Where the person referred to in paragraph (1) is a company or other corporation, a copy of the judgment or order must also be served on the respondent before the end of the time fixed for doing the act.3.Copies of the judgment or order and any orders or agreements fixing or varying the time for doing an act must be served in accordance with rule 81.6 or 81.7, or in accordance with an order for alternative service made under rule 81.8(2) (b)’’ 20.The Black’s Law Dictionary, 9th Edition, defines notice as- A person has notice of a fact or condition if that person: -i.Has actual knowledge of it.ii.Has received information about it.iii.Has reason to know about it.iv.Knows about a related fact.v.Is considered as having been able to ascertain it by checking.vi.Official filing or recording. 21.To establish that there was contempt of breach of court order, other than proof of service of the order, the applicant must prove that the respondent knew the terms of the order- that they were clear and unambiguous; the respondent acted (or failed to act) in a way that breached the order; and the respondent knew of the facts that made the conduct a breach of the order. This Court in Ochino & Another vs Okombo & 4 others (1989) KECA 65 (KLR) affirmed this position by holding that:"The power to deal with contempt of court is provided for under section 5 of the Judicature Act (cap. 8) and order 39 rule 2(3) of the Civil Procedure Rules. We have to follow the procedure and practice in England. As we read the law, the effect of the English provisions is that as a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced (by committing him for contempt) unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. The copy of the order served must be indorsed with a notice informing the person on whom the copy is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it. As this court pointed out recently in the case of Mwangi Mangondu v Nairobi City Commission (Civil Appeal No 95 of 1988):‘This requirement is important because the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.’” 22.Was service of the penal notice dispensed with by the applicant? We pose this question fully aware that Rule 81.8 of the Contempt of Court Act of 1981 subjects the dispensation of service of copies of a judgment or order to the issue of notice of the judgment and the courts discretion. It provides that:(1)In the case of a judgment or order requiring a person not to do an act, the court may dispense with service of a copy of the judgment or order in accordance with rules 81.5 to 81.7 if it is satisfied that the person has had notice of it –a.by being present when the judgment or order was given or made; or by being notified of its terms by telephone, email or otherwise. (emphasis ours)(2)In the case of any judgment or order the court may-a.dispense with service under rules 81.5 to 81.7 if the court thinks it just to do so; orb.make an order in respect of service by an alternative method or at an alternative place. 23.As per Rule 81.8, dispensation of service on the basis of notice or knowledge of the terms of an order will only apply to a court judgment or order requiring a person not to do an act, that is, a prohibitory order. The dispensation of service under Rule 81.8 is subject to whether the person can be said to have had notice of the terms of the judgment or order. The notice of the order is satisfied if the person or his agent can be said to either have been present when the judgment or order was given or made; or was notified of its terms by telephone, email or otherwise. 24.In our view, the word 'otherwise' would mean any other action that can be proved to have facilitated the person having come into knowledge of the terms of the judgment and/or order. This would definitely include a situation where a person is represented in court by counsel. Once the applicant has proved notice, the respondent bears an evidential burden in relation to wilfulness and mala fides disobedience. 25.In the Shimmers case (supra), the learned Judges of this Court were of the view that:"Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case." 26.We are also persuaded by the decision of Lenaola, J. (as he then was) in Basil Criticos vs. Attorney General and 8 Others (2012) KEHC 1480 (KLR) where he pronounced himself as follows:“...the law has changed and as it stands today knowledge supersedes personal service.....where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary” 27.The jurisprudence obtaining currently is that, where there is sufficient knowledge of a court order, it suffices to dispense with personal service for purposes of contempt proceedings unless the party was not a party to the proceedings, or was unaware of the court proceedings. This is a clear departure from the findings in the case of Ochino & Another (supra), which was of the view that penal notice must be served personally notwithstanding the knowledge of the court order. 28.In the present circumstances, it is the respondent who filed the present appeal against the decision of the first appellate court. He was represented by counsel. It cannot be gainsaid that it was in his best interest to follow up either by himself or through his counsel on the outcome of the appeal. Since the respondent was represented all through the proceedings and, in fact, filed a response to this application, the only conclusion we can safely arrive at is that his counsel informed him of the outcome of the appeal. In any event, the outcome of the appeal was more favourable to the respondent than the applicant. This, in our view is sufficient knowledge of the court order and, hence, there was no need for further service of the order accompanied by the penal notice. 29.We are in this case, however faced with a tricky situation. At the hearing, Ms. Chengo submitted that the penal notice was served upon the respondent. On further questioning by the Court, counsel was categorical that the applicant was neither aware of the whereabouts of the respondent nor of the child. Her cagey answer was to the effect that they must be within Mombasa in Kenya, but could not tell their exact location. It therefore follows that it will defeat the purpose of issuing any adverse orders against the respondent. And, as the adage goes, ‘a court does not issue orders in vain’’, we do not wish to exacerbate an already bad situation that involves a vulnerable person, a child of very tender years. 30.We make the above observation having regard to Article 53(2) of the Constitution which provides that a child’s best interest is paramount in every matter concerning a child. The applicant being the mother of the minor, has an equal right to be involved in the child’s affairs, including his upbringing. We would frown upon the audacious moves of one parent to deprive the other of this right to access and visitation even where there is a clear and unambiguous court order. For those reasons, we shall extend to the applicant an olive branch to allow her put her house in order and, in particular, to find the whereabouts of the respondent and the minor before filing another contempt of court application, if she so wishes. 31.Consequently, we find that the application is premature and incompetent. It is hereby struck out with no order as to costs. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A. K. MURGOR.....................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb........................JUDGE OF APPEALG. W. NGENYE-MACHARIA............................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR