https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12794

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **CIVIL CASE NO. E153 OF 2025** **IMPALA SHUTTLE LIMITED ……….……. PLAINTIFF/APPLICANT** **VERSUS** **IMPALA CONNECTION t/a** **IMPALA SHUTTLE (EA) LTD………..DEFENDANT/RESPONDENT** **RULING** 1. Before this Court for determination is a Notice of Motion application dated 19th March, 2025, seeking, principally orders directing OCS Central Police Station Nairobi to enforce orders issued by this court on 6th March, 2026. The orders sought to be enforced restrained the Defendant from operating Motor Vehicles bearing the mark “Impala Shuttle” within or in proximity to the Plaintiff’s Jevanjee premises and from using the mark Impala Shuttle on its motor vehicles, offices, receipts, uniforms and any other surfaces that are capable of usage within Kenya. The Applicant also seeks costs of the application. 2. The application is supported by the affidavit sworn by Simon Ngeshu Njeri, a director of the Applicant company Impala Shuttle Limited. The Applicant contends that despite the orders issued on 6th March, 2026, the Defendant has continued to use the mark Impala Shuttle and to operate vehicles bearing the mark in contravention of the orders of the Court. The Applicant therefore seeks police assistance in enforcing the said orders. 3. The Respondent opposes the application through a Replying Affidavit sworn on 10th April, 2025, by Charles Waiganjo Njenga, the director of the Defendant company. The Respondent asserts that immediately upon being informed of the Court’s ruling, it took steps towards compliance including closing its offices temporarily and subsequently rebranding its offices, receipt books and vehicles after securing the necessary financial resources. The Respondent maintains that it has complied with the Court’s orders and denies any acts of disobedience. It further refers to proceedings in Tanzania, where, according to the Respondent, orders were issued against the Applicant concerning the use of the mark “Impala Shuttle” mark in Tanzania and also deregistering a company known as Impala Shuttle (T) Limited which he alleges the Applicant had registered in order to put the parent company out of business The Respondent urges the Court to verify the extent of its compliance and dismiss the application with costs. 4. In response, the Applicant filed a further affidavit sworn on 22nd April, 2026, maintaining that the Respondents has knowingly and deliberately failed to comply with the orders of 6th March, 2026. The Applicant contends that the continued use of the impugned mark continues to cause confusion among the customers, loss of business and damage to its reputation and good will. 5. The application was canvassed by written submissions. The Applicant’s submissions are dated 27th April, 2026, while the Respondents’ submissions are dated 5th May, 2026. ***Applicant’s submissions*** 1. The Plaintiff’s/Applicant’s submissions commence with a brief factual background to the application before identifying a single issue for determination, namely, whether the Plaintiff is entitled to the orders sought. 2. Counsel for the Plaintiff submits that all the elements necessary to establish contempt of court have been satisfied. Reliance is placed on ***Kenya National Union of Teachers & 2 Others v Teachers Service Commission [2018] KECA 214 (KLR)****,* where the Court of Appeal set out the applicable principles for proving contempt. Counsel argues that the Court must ascertain the existence of a valid court order, identify the person bound by the order, determine the obligations imposed by the order, and establish that the alleged contemnor had knowledge of the order and willfully disobeyed it. According to the Plaintiff, each of these requirements has been demonstrated in the present case. 3. The Plaintiff submits that there is no dispute concerning the existence, validity or clarity of the orders issued on 6th March, 2026. Those orders expressly restrained the Defendant from using the mark “Impala Shuttle” on its vehicles, offices, receipts, uniforms and other business materials and further prohibited it from operating vehicles bearing that mark within or in proximity to the Plaintiff’s Jevanjee premises. Counsel submits that these orders were clear, unambiguous and capable of compliance. 4. On the question of knowledge, the Plaintiff argues that the Defendant expressly admitted in its Replying Affidavit that it became aware of the orders through its advocates. The Plaintiff therefore contends that knowledge of the orders has been unequivocally established. Relying on ***Basil Criticos v Attorney General & 8 Others [2012] eKLR,*** counsel submits that personal service of a court order is not a prerequisite where actual knowledge of the order is demonstrated. 5. On the issue of disobedience, the Plaintiff relies on photographic evidence annexed to its affidavits. It is submitted that photographs taken on 16th and 17th March, 2026, show that the Defendant continued operating within the prohibited vicinity while using the impugned mark or a confusingly similar variation thereof. The Plaintiff further points to photographs annexed to the Further Affidavit and allegedly taken on 22nd April, 2026, which depict the Defendant operating under the name **“Impala Connections (E.A.)”** within the Jevanjee area. 6. According to the Plaintiff, the continued use of the dominant and distinctive word **“Impala”** demonstrates that the Defendant did not genuinely comply with the Court’s orders but merely attempted to circumvent them through superficial rebranding. Counsel maintains that the Defendant continued to benefit commercially from the goodwill associated with the restrained mark, thereby perpetuating the likelihood of customer confusion which the Court sought to prevent. 7. It is further submitted that the timing of the rebranding, occurring only after the filing of the present application, undermines the Defendant’s claim of good faith and instead suggests an attempt to avoid the consequences of non-compliance. 8. While relying in the case of ***Hadkinson v Hadkinson [1952] All ER 567,*** and ***Nyandarua Progressive Agency Limited v Njoroge & another (Civil Suit E029 of 2022) [2026] KEHC 2564,*** the Plaintiff emphasizes that obedience to court orders is fundamental to the rule of law and the administration of justice. Counsel argues that the Defendant neither sought nor obtained any variation, stay or discharge the orders issued on 6th March, 2026. Instead, it unilaterally decided the extent to which it would comply by changing its business name. Such conduct, the Applicant submits undermines the authority and dignity of the court and justifies enforcement under Section 5 of the Judicature Act through the intervention of the OCS Central Police Station. Accordingly, the Plaintiff urges the court to find that the Defendant is in contempt of the said orders, and to allow the Notice of Motion dated 19th March, 2026. ***Respondent’s submissions*** 1. The Respondent began its submissions with a brief introduction and factual background of the matter. The Respondent submits that a proper reading of the Court’s ruling, particularly paragraphs 37 and 38 thereof, demonstrates that the injunction was directed only against the use of the composite mark “Impala Shuttle” and not the word “Impala” in isolation. The Respondent argues that the Court deliberately restrained the use of the mark “Impala Shuttle” and did not prohibit the use of the word “Impala,” which forms part of its registered corporate name, Impala Connection. Accordingly, it contends that its continued use of the word “Impala” as part of its corporate identity does not constitute a breach of the Court’s orders. 2. The Respondent further submits that contempt of court iproceedings are quasi-criminal in nature and may result in sanctions affecting a party’s liberty. Consequently, it argues that the standard of proof required is higher than that applicable in ordinary civil proceedings. Relying on ***Gatharia K. Mutitika v Baharini Farm Ltd [1985] KLR 227***, Counsel submits that an Applicant must demonstrate the existence of clear and unambiguous court orders, knowledge of those orders by the alleged contemnor, breach of the orders, and deliberate or wilful disobedience thereof. 3. It is the Respondent’s position that courts exercise the power to to punish for contempt with caution and that contempt proceedings should not be employed as a tactical tool in ordinary civil disputes particularly where other remedies are available and substantial compliance has been achieved. 4. Applying those principles to the present case, the Respondent maintains that it complied with the orders issued on 6th March, 2026, by ceasing use of the prohibited mark and undertaking the necessary rebranding of its operations. According to the Respondent, the documentary and photographic evidence annexed to its Replying Affidavit demonstrates compliance with the Court’s directives. It contends that any alleged residual use either does not amount to a breach of the orders or, if capable of such interpretation, cannot properly be characterised as deliberate or willful disobedience. 5. The Respondent further argues that the Applicant has failed to discharge the evidentiary burden required in contempt proceedings. It submits that the Application is founded largely on allegations and on isolated incidents which fall far short of the stringent standard necessary to establish contempt. The Respondent, therefore, contends that the application is misconceived and appears to have been brought in bad faith to harass the Respondent rather than to secure genuine enforcement of the Court’s orders. For that reason, it urges the Court to dismiss the application with costs. ***Analysis and Determination*** 1. I have carefully considered the application the affidavits filed by the parties, and their respective submissions. In my view, the issue falling for determination is **whether the Respondent is in contempt of the orders issued by this Court on 6th March, 2026, and, if so, whether the orders sought in the Notice of Motion dated 19th March, 2026, should issue**. 2. The Applicant seeks orders directing the Officer Commanding Station (OCS), Central Police Station, Nairobi, to enforce the orders issued by this Court on 6th March, 2026. Although the application is framed as one seeking police assistance in enforcement, the foundation of the relief is sought is the allegation that the Respondent has failed to comply with the said court's orders. Before any enforcement order can issue, this court must first be satisfied that there has been disobedience and or contempt of the orders in question. 3. The law relating to contempt of court is settled. The jurisdiction exists to protect the dignity and authority of the court and to ensure that judicial orders are obeyed. In ***Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828***, Ibrahim, J. (as he then was), emphasized that court orders are not issued in vain and must be obeyed unless and until they are set aside or varied by a competent court. The court observed; *“****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****.”* 1. Equally settled is the principle that contempt proceedings are quasi-criminal in nature. A finding of contempt may result in serious sanctions, including the deprivation of liberty. Consequently, the standard of proof required is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt. In ***Gatharia K. Mutitika v Baharini Farm Ltd [1985] KLR 227***, the Court of Appeal held that allegations of contempt must be proved with a degree of strictness commensurate with the gravity of the sanction sought. 2. The applicable elements of contempt were summarized by the Court of Appeal in ***Kenya National Union of Teachers & 2 Others v Teachers Service Commission [2018] KECA 214 (KLR)*** as follows: the existence of a clear and unambiguous court order, knowledge of that order by the alleged contemnor, breach of the order, and wilful or deliberate disobedience of the order. 3. Applying those principles to the present application, the first two elements are not in dispute. There is no controversy regarding either the existence or validity of the orders issued by this court on 6th March, 2026. The orders expressly restrained the Respondent from using the mark "Impala Shuttle" on its motor vehicles, offices, receipts, uniforms and any other surfaces capable of usage within Kenya. The Court further restrained the Respondent from operating motor vehicles bearing the mark "Impala Shuttle" within or in proximity to the Applicant's Jevanjee premises. Those orders were clear, specific and capable of compliance. 4. There is equally no dispute regarding knowledge of the orders. The Respondent expressly admits that immediately after delivery of the ruling it was informed of the decision by its advocates and took steps towards compliance. That admission conclusively establishes knowledge of the orders and thus rendering personal service unnecessary. This is consistent with the holding in ***Basil Criticos v Attorney General & 8 Others [2012] eKLR****,* that proof of knowledge rendered personal service unnecessary. 5. The dispute therefore narrows to whether the Applicant has proved, to the requisite standard breach of the orders and deliberate disobedience to warrant the grant of the orders sought. 6. The Applicant's case is founded principally upon photographic evidence demonstrating that shortly after the delivery of the ruling, the Respondent continued operating vehicles and premises bearing the impugned branding. The Applicant further contends that the subsequent adoption of the name “Impala Connection E.A.” constitutes a deliberate attempt to evade the Court's orders while retaining the dominant word "Impala" so as to continue benefitting from the goodwill associated with the impugned mark. 7. The Respondent, on the other hand, contends that it fully complied with the court's orders. It explains that immediately after becoming aware of the ruling it shut down its operations temporarily and after approximately two weeks, rebranded its offices, vehicles and receipt books to read "Impala Connection E.A." Photographs annexed to the Replying Affidavit depict the new office signage, buses and business premises bearing the new branding. The Respondent therefore argues that it ceased using the prohibited mark "Impala Shuttle" and adopted a different business name thus complying with the court order. 8. Upon examining the photographic evidence placed before the Court, I am persuaded that two distinct periods emerge. The first consists of photographs taken on 16th and 17th March, 2026, which appear to depict continued use of the impugned branding shortly after the issuance of the orders. The second consists of photographs exhibited in the Applicant's Further Affidavit, taken more than one month later, which depict the Respondent using the branding **“**Impala Connection E.A.” rather than **“**Impala Shuttle.” 9. I accept that the implementation of an order requiring the rebranding of a transport business with vehicles, offices, receipt books and related materials cannot ordinarily be accomplished instantaneously. In determining contempt, the Court must consider the practical realities surrounding compliance and whether the evidence demonstrates a deliberate refusal to obey the order. The Respondent's explanation that a short period was required to facilitate compliance is not, in the circumstances of this case, inherently unreasonable. 10. More significantly, the Applicant's own later evidence confirms that the Respondent ultimately ceased using the specific mark prohibited by the Court. The photographs annexed to the Further Affidavit consistently depict the Respondent trading under the name “Impala Connection E.A.” and not “Impala Shuttle.” 11. The Applicant nevertheless argues that the Respondent remained in contempt because the continued use of the word "Impala." Preserves the dominant component of the prohibited mark and continues to cause confusion among customers. While that contention may raise legitimate questions of trade mark infringement, passing off, or unfair competition, those questions are distinct from the issue presently before the court. 12. The issue is not whether the new branding infringes intellectual property rights or is likely to cause confusion. Rather, the issue is whether the Respondent disobeyed the specific terms of the injunction granted by this Court. 13. The Respondent argues that this court restrained only the composite mark "Impala Shuttle" and did not prohibit the use of the word "Impala" in isolation which forms part of its corporate name. I have revisited the ruling of 6th March, 2026, particularly paragraphs 37 and 38 referred to by the Respondent. It expressly provides that; *“****37.The Plaintiff as the registered proprietor of the impugned mark in Kenya, has demonstrated an existing legal right. Preserving that right pending trial maintains the status quo ante the infringement. Conversely, the Defendant will still retain the liberty to conduct its transport business under a distinct name and branding that does not infringe upon the Plaintiff’s registered Mark. In weighing the competing interests, it is my finding that greater prejudice would be suffered by the Plaintiff if the alleged infringement and confusion are permitted to continue. In light of the foregoing, I am persuaded that the balance of convenience tilts in favour of protecting the registered******proprietor of the Mark “Impala Shuttle”, namely, the Plaintiff, pending the hearing and determination of this suit*** ***38.The upshot is that the Plaintiff’s application dated 5th March 2025 is merited, whereas its 2nd application dated 27th October 2025 is partly successful. The final orders are that-*** ***i.The Defendant is hereby restrained from using the Mark ‘Impala Shuttle’ on its motor vehicles, offices, receipts, uniforms and any other surfaces that are capable of usage within Kenya;*** ***ii.The Defendant is hereby restrained from operating motor vehicles bearing the mark ‘Impala Shuttle’ within or in proximity to the Plaintiff’s Jevanjee premises thereby causing confusion to the Plaintiff’s customers; and*** ***iii.Costs shall be in the cause.*** 1. I note that the operative orders restrained the Respondent from using the mark "Impala Shuttle." They did not restrain the restraining the Respondent from using every business name containing the word "Impala" nor did they prohibit the Respondent from carrying on business under any other name incorporating that word. Had the Court intended to prohibit the use of the word “Impala” altogether, it would have said so in express terms. 2. The Applicant's submissions effectively invite this Court to broaden the scope of the injunction beyond its actual wording. To hold that the use of **“Impala Connection E.A.”** amounts to contempt would require the Court to read into the order a prohibition that was never expressly granted. That is a course which this Court cannot take. A party can only be punished for disobeying an order that is clear as to what it requires or prohibits. Any ambiguity must be resolved in favour of the alleged contemnor. 3. If the Applicant considers that the Respondent's new branding remains confusingly similar to its registered mark or continues to infringe its intellectual property rights, the appropriate remedy lies in seeking additional or modified injunctive relief or in prosecuting the substantive claims in the suit. Contempt proceedings cannot be used as a mechanism for enlarging the scope of an existing order. 4. I have also considered the materials relating to the Tanzanian proceedings. While they demonstrate the existence of parallel disputes concerning similar trade names, they do not assist the Court in determining whether the specific Kenyan orders were disobeyed. I therefore attach little weight to that evidence for purposes of this application. 5. Ultimately, and bearing in mind the elevated standard of proof applicable in contempt proceedings, I am not satisfied that the Applicant has established deliberate and willful disobedience of the orders issued on 6th March, 2026. The evidence demonstrates that the Respondent ceased using the prohibited mark and thereafter adopted a different business name. Whether that new name infringes the Applicant's rights is a separate question that falls to be determined in appropriate proceedings and not within the confines of contempt jurisdiction. 6. Accordingly, I find that the Applicant has failed to prove contempt to the standard required by law. In the absence of a proven breach of the Court's orders, there is no basis upon which this Court can invoke its coercive powers by directing the OCS Central Police Station, Nairobi, to enforce the orders in the manner sought. 7. Consequently, the Notice of Motion dated 19th March, 2026, is devoid of merit and is hereby dismissed with costs to the Respondent. 8. Orders accordingly. ***Delivered, Dated and Signed virtually this 6th day of August, 2026*** **RHODA RUTTO** **JUDGE** **Court Assistant: Wabwire**