Jeremiah’s Creek Ltd v Ndungu (Environment and Land Case E103 of 2021) [2026] KEELC 5295 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENTAL AND LAND COURT** **AT KWALE** **ELC CASE NO. E103 OF 2021** ***(Formerly ELC No. 68 of 2017, Mombasa)*** **JEREMIAH’S CREEK LIMITED……..…………….PLAINTIFF/APPLICANT** * **VERSUS –** **TABITHA NDUNGU…..…………………………DEFENDANT/RESPONDENT** **RULING** 1. **Introduction** 2. This Honourable Court was called upon to determine two ( 2 ) Notice of Motion application dated 16th February, 2026 by *Jeremiah’s Creek Limited*, the Plaintiff/Applicant herein. The 2nd application was the one dated 18th February, 2026 by *Tabitha Ndungu*, the 1st Defendant. This Application was brought under the provisions of Sections 1A, 1B, 3A and 38 of the Civil Procedure Act, Cap. 21 Laws of Kenya, Order 9 Rule 9 and Order 22 of the Civil Procedure Rules, 2010, together with all other enabling provisions of the law. 3. Upon service of the 1st application, the Defendant/Respondent, filed responses vide a 16 Paragraphed Replying Affidavit dated 12th march, 2026. Likewise, while opposing the 2nd application, the Plaintiff herein filed their replies vide a Replying Affidavit dated………………..Thus, the Honourable Court has dealt with the two applications simultaneously but distinctly and separately and reserved an omnibus Ruling herein. 4. **The Notice of Motion application dated 16th February, 2026 by the Plaintiff/Applicant** 5. The Plaintiff/Applicant sought for the following orders: - 6. ***Spent.*** 7. ***That this Honourable Court be pleased to grant leave to the Law firm of Messrs. Githiomi Mungai Advocates LLP to come on record for the Plaintiff/Applicant post-judgment.*** 8. ***That this Honorable Court be pleased to cite the Defendant/Respondent for contempt of court for willfully disobeying and deliberately disobeying the Judgment of this Honorable Court dated 4th August, 2025 issued by Honorable Lady Justice A.E. Dena.*** 9. ***That this Honorable Court be pleased to commit the Defendant/Respondent to civil jail for a period of Six (6) Months or impose such other sanctions as it deems fit in the circumstances.*** 10. ***That this Honorable Court be pleased to direct the Officer Commanding Station (OCS),Diani Police Station and/or such other police officers as may be necessary to provide security and maintain peace and order during the execution of the eviction, and to prevent any breach of the peace, obstruction, intimidation or interference with the Court Bailiff/Auctioneer and/or the Applicant/Decree Holder.*** 11. ***That the costs of this application be provided for.*** 12. The application was premised on the grounds, testimonial facts and the averments made out under the 14 Paragraphed annexed supporting affidavit of DAVID NEEDHAM, the director of the Plaintiff/ Applicant averred as follows that:- 13. He was well versed with the matters pertinent to the suit and hence competent to swear the Affidavit on behalf of the Plaintiff/Applicant. 14. Pursuant to the Judgment dated and delivered on 4th August, 2025 (“the Judgment”), this Honourable Court made the following determination: 15. The eviction of the Defendant/Respondent from Plot No. Kwale/Diani Complex/1069 (Herein after referred to as “the Suit Property”) and vacant possession thereof was to be effected within 120 days from the date of delivery of the Judgment. 16. The eviction was to be peaceful, dignified and carried out in a humane manner should the Defendant/Respondent fail to vacate at the expiry of 120 days. 17. The Defendant/Respondent and/or her advocates were aware of the Judgment that was delivered and the consequential Decree dated 9th December, 2025 (“the Decree”) issued thereafter. Annexed hereto and marked as “DN - 1” was a copy of the Judgment and the Decree dated 4th August, 2025. 18. Despite being aware of the aforesaid Judgment and Decree, the Defendant/Respondent had willfully failed and/or refused to comply with the orders of this Honourable Court. 19. The Plaintiff/Applicant had unsuccessfully made several attempts to get the Defendant out of the suit property in a humane and dignified manner, but the Defendant/Respondent continued to show contempt to the orders of this Honourable Court as laid out in the Judgment. 20. It had been over 120 days since the Judgment was delivered but the Defendant/Respondent had willfully refused to vacate the suit property to give effect to the orders of this Honourable Court. 21. As recent as 10th February, 2026, the Plaintiff/Applicant had caused the Judgment and Decree to be affixed in a conspicuous place on the suit property as a reminder to the Defendant/Respondent, but she continued to be in contempt of the orders. Annexed hereto and marked as “DN - 2” was a photograph of the Judgment and Decree posted on the gate to the entry of the Suit Property. 22. The actions of the Defendant/Respondent undermined the authority of this Honourable Court and risked rendering its orders nugatory unless effective steps were undertaken to enforce compliance. 23. The orders of this Honourable Court were not issued in vain, the Plaintiff/Applicant had sought the intervention of this Honourable Court to assist in the compliance of the Judgment and the Decree. 24. The continued willful disobedience of the Judgment by the Defendant/Respondent continued to deprive the Plaintiff of its constitutionally guaranteed right to the protection of its property while at the same time showing contempt to this Honourable Court of its validly issued court orders. 25. To ensure that the eviction was carried out in the manner stated in the Judgment, the Plaintiff/Applicant sought for a directive to be given to the Officer Commanding Station (OCS), Diani Police Station and/or such other police officers as might have been necessary to provide security and maintain peace and order during the execution of the eviction, and to prevent any breach of the peace, obstruction, intimidation or interference with the Court Bailiff/Auctioneer and/or the Applicant/Decree Holder. 26. The orders sought by the Plaintiff/Applicant were granted, the Defendant/Respondent stood to deprive the Plaintiff/Applicant of its constitutionally guaranteed right to the protection of its property. 27. The facts deponed to herein were true to the best of his knowledge, save as to matters deponed to on information, sources whereof had been disclosed, and matters deponed to on belief, the grounds whereupon had been given for such belief. 28. **The Grounds of opposition by the Defendant/Respondent** 29. The Defendant/Respondent opposed the Plaintiff’s Notice of Motion application dated 16th February, 2026 through a grounds of opposition dated 12th March, 2026 on the following grounds:- 30. The Application was bad in law, grossly misplaced, lacking in merits and otherwise an abuse of the due process of the Court. 31. The Law firm of Messrs. Githiomi Mungai Advocates LLP had no right of audience in this matter as the Advocates on record the Plaintiff is ABK Advocates LLP, and they had not been removed from so acting. In the premises, said law firm of Messrs. Githiomi Mungai Advocates LLP had no right of audience in this matter, as purported or at all 32. The Notice of Motion Application dated the 16th February, 2026 was omnibus and thus incapable of being heard and/or prosecuted as it was or at all, and ought to be struck out. 33. The Orders sought Notice of Motion Application dated the 16th February, 2026 could not be granted as sought or at all. 34. The Application herein had no basis and thus ought to be forthwith dismissed with costs to the Plaintiff. 35. **The responses by the 1st Defendant to the Notice of Motion application dated 16th February, 2026** 36. Additionally, the 1st Defendant responded to the Notice of Motion application through a 16 Paragraphed Replying Affidavit sworn by TABITHA NDUNGU on 12th March, 2026 wherein the Affiant deponed as follows that:- 37. She was the 1st Defendant therein and of sound mind, well versed with the issues in that matter, and thus she was competent to swear that Affidavit. 38. The Law firm of Messrs. Githiomi Mungai Advocates LLP had no right of audience in that matter as the Advocates on record for the Plaintiff were ABK Advocates LLP, and they had not been removed from acting. 39. Notwithstanding the above, though that Honourable Court had delivered Judgment on the 4th August, 2025, she had been aggrieved by the entire Judgment, consequent to which she filed an Appeal by lodging the Notice of Appeal dated the 8th August, 2025, which had been duly paid for on the 10th August, 2025 as evidenced by Receipt No. RB-0122794 in the CTS. 40. Since the said Appeal was to the Court of Appeal, she had been informed by her Advocate, Mr. R. M. Tindika, and she verily believed the said information to be true, that having filed the Notice of Appeal, there was consequently an Appeal lodged with and pending before the Court of Appeal in pursuance of the mandatory provisions of Order 42 Rule 6 (4) of the Civil Procedure Rules, 2010 which provided:- **“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.”** 1. The 1st Defendant was a total stranger to the allegations that David Needham or anyone on behalf of the Plaintiff had made attempts to get out of the suit property in any humane or dignified manner, other than the illegal disconnection of her electric power and unlawful posting of Notice by the said David Needham at the gate of the suit property. 2. She had claim to the suit property by the fact that the same had been bought by her late Husband, Charles Kamau (Deceased), through a Company, Escafeld Holdings Limited, which he had incorporated with Maureen Millet, and which had proceeded to purchase the suit property from the Interested Party, Andrew Thiaine Imwati. Consequent to the said purchase, the original Title Deed to the suit property, which was to be transferred to the said Company after paying the full purchase price thereof, had been obtained. 3. She reiterated, as she had averred in her Affidavit in support of the Application for injunction and stay of execution of the Judgment therein, that no transaction had taken place between the Plaintiff and the original owner of the suit property, Andrew Thiaine Imwati, and specifically, the Plaintiff had not paid a single cent for the purchase of the property. This was a serious triable issue that was to be addressed by the Court of Appeal in the said pending Appeal. 4. Further, in order to obtain the illegal, unlawful, and fraudulent title deed for the suit property, the Plaintiff had presented before the Land Registrar, Kwale, documents that were not capable of passing any interest thereof, had never been executed, and therefore the transfer had been grossly fraudulent. This position had been supported by the Land Registrar who testified on behalf of the 2nd Defendant; this was another very serious issue that was to be determined by the Court of Appeal. 5. The Plaintiff’s Director, David Needham, was a foreigner, being a citizen of Great Britain, and thus armed with a Title Deed which had been illegally, unlawfully, wrongfully, and fraudulently obtained. If the suit property had been released to him, as wrongfully sought in the Application at hand, the Plaintiff would have proceeded to sell, dispose of, or part with ownership of the suit property in an endeavour to frustrate any Appeal to the Court of Appeal. This explained why the Director aforesaid had used all illegal means to wrestle the property from her hands, which would have had the obvious effect of rendering the Appeal nugatory. 6. There had been need for the suit property to be preserved, and the best way to do so had been to issue injunctive orders as well as an order of stay of execution of the Decree emanating from the Judgment of that Honourable Court against the Plaintiff as per the Notice of Motion Application dated the 18th February, 2026, pending the hearing and determination of the said Appeal. 7. The lodging of the Record of Appeal to the Court of Appeal had been awaiting the certified copies of Proceedings and Judgment, which that Honourable Court had yet to avail, and hence the delay in filing the Record of Appeal could not be blamed on her. 8. The 1st Defendant’s Application for stay of execution of the Decree as well as injunction pending Appeal had clearly been made within the confines of the law, not only under the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 but also under other provisions of the law as cited in her Application dated the 18th February, 2026, and that the said Application had not been a reaction to the Plaintiff’s Application as alleged. 9. From the Plaintiff’s illegal, unlawful, wrongful, and fraudulent actions of obtaining the Title Deed to the suit property, despite the fact that the original Title Deed existed and had never been cancelled, the Plaintiff had, by the Application at hand, been geared towards illegally, unlawfully, and wrongfully removing and/or evicting her from the property so that he might defeat her and the Estate of her Husband’s right, interest, and claim to the suit property, which would have had the consequence of occasioning them irredeemable and irreparable loss and damage. 10. She had strenuously opposed the Plaintiff’s Notice of Motion Application dated the 16th February, 2026, and she prayed that the same be dismissed with costs to her. 11. All what she had stated therein above was true to the best of her knowledge and belief, save for information sources whereof she had been disclosed and which she verily believed to be true. 12. **The Notice of Motion Application dated 18th February, 2026 by the Defendant** 13. The Notice of Motion application by the Defendant was brought pursuant to the following provisions - Articles 40, 50 and 159 of the Constitution of Kenya, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 Order 42 Rule 6 ( 1 ) and ( 4 ) of the Civil procedure Rules, Section 19 of the Environment & Land Court Act, No. 19 of 2011 and all other enabling provisions of the law. The Defendant sought for the following orders:- 1. ***Spent.*** 2. ***That this Honourable Court does issue an Order of temporary injunction restraining the Plaintiff, by itself, its Director (s), agents, assignees, employees, servants, nominees or any one claiming through or under it from entering into, selling or offering to sell, disposing off, charging, mortgaging, sub – dividing, pleading, entering into, remaining in or in any other manner howsoever interfering with the 1st Defendant/Applicant’s ownership and quiet possession and enjoyment of all that property known as Plot/Title Number Kwale/Diani Complex/1069 together with the buildings and/or improvements, trees, vegetation and/or crops thereon pending the hearing and determination of this application.*** 3. ***That this Honourable Court does issue an Order of temporary injunction restraining the Plaintiff, by itself, its Director (s), agents, assignees, employees, servants, nominees or any one claiming through or under it from entering into, selling or offering to sell, disposing off, charging, mortgaging, sub – dividing, pleading, entering into, remaining in or in any other manner howsoever interfering with the 1st Defendant/Applicant’s ownership and quiet possession and enjoyment of all that property known as Plot/Title Number Kwale/Diani Complex/1069 together with the buildings and/or improvements, trees, vegetation and/or crops thereon pending the hearing and determination of the intended Appeal to the Court of Appeal against the Judgement and Decree of this Honourable Court delivered and/or made on 4th day of August, 2025.*** 4. ***That this Honourable Court to make an Order of Stay of Execution of the Decree arising from the Judgement and Decree of this Honourable Court delivered and/or made on 4th day of August, 2025 pending the inter - parte hearing of this Application.*** 5. ***That this Honourable Court to make an Order of Stay of Execution of the Decree arising from the Judgement and Decree of this Honourable Court delivered and/or made on 4th day of August, 2025 pending the lodging, hearing and determination of the intended Appeal to the Court of Appeal against the Judgement and Decree of this Court delivered and/or made on 4th day of August, 2025.*** 6. ***That costs of this application be borne by the Plaintiff.*** 7. The application was premised on the grounds, testimonial facts and the averments made out under the 29 Paragraphed Supporting Affidavit by TABITHA NDUNGU sworn and dated on 18th February, 2026 tother with seven ( 7 ) annextures marked as “TN”. She averred as follows that:- 8. **The responses to the Notice of Motion application dated 18th February, 2026 by the Plaintiff** 9. The Plaintiff/Respondent opposed the Notice of Motion application dated 18th February, 2026 through a 21 paragraphed replying affidavit sworn by DAVID NEEDHAM on 11th March, 2026 wherein he responded as follows: 10. He was the director of the Plaintiff/Respondent with full authority and knowledge of the facts pertaining to that suit; hence competent to swear that affidavit on behalf of the Plaintiff/Respondent. 11. The had read and understood the Notice of Motion application dated 18th February, 2026 and the Supporting Affidavit of Tabitha Ndungu of even date filed by the 1st Defendant/Applicant under a Certificate of Urgency and wished to respond to the same as hereunder. 12. In response to Paragraphs 2 – 10 of the Supporting Affidavit, he had been advised by the Plaintiff/Respondent’s advocates on record, which advice he believed to be true, that all the facts deponed to by the 1st Defendant/Applicant were Res - Judicata after the same had been settled in the judgment of that Honourable Court dated 4th August, 2025. 13. The 1st Defendant/Applicant’s act of trying to relitigate the issues through the back door was akin to asking that Honourable Court to exercise appellate jurisdiction where it had already been rendered functus officio. 14. In response to Paragraph 11 of the Supporting Affidavit, the Plaintiff/Respondent had noticed that there was a Notice of Appeal filed on 10th August, 2025, but the same referred to a decision of a different trial judge delivered on a different date. 15. Further and without prejudice to the foregoing, it therefore remained unclear whether the Notice of Appeal had been intended for that particular suit or for a different matter. However, it should not have been the duty of that Honourable Court to decode the intentions of the 1st Defendant/Applicant. 16. In the alternative, if it had been a genuine mistake made by the 1st Defendant/Applicant in the drafting process of the Notice of Appeal, it therefore behooved the 1st Defendant/Applicant, over 194 days, to file an Amended Notice of Appeal without even seeking leave of that Honourable Court to enlarge time to have the same admitted on record to regularize the process. 17. In response to Paragraphs 12 – 13 of the Supporting Affidavit, the 1st Defendant/Applicant ought to have known that a court of law did not issue orders in vain and hence the same had to be complied with unless a stay order had been issued pending an appeal process. 18. Further and without prejudice to the foregoing, the only thing that the 1st Defendant/Applicant had demonstrated was the effort made in obtaining certified proceedings required for filing a Record of Appeal, but no explanation as to why she had and continued to openly defy the orders made in the Judgment. 19. In further support of Paragraphs 8 – 9 hereinabove, the averments made by the 1st Defendant/Applicant were merely sideshows which did not address the germane issue of why she had failed to obey lawful court orders in existence as per the Judgment. 20. In response to paragraphs 16 – 20, the Plaintiff/Respondent had no powers or authority to direct Kenya Power (KP) on the disconnection of a lawful connection. And if the same had been done by KP, the Plaintiff believed that proper protocols had to be followed to ensure KP did not abuse its authority. 21. Further and in support of paragraph 15 hereinabove, the Plaintiff/Respondent could not therefore be blamed for any misfortunes that the 1st Defendant/Applicant had faced as a result of a disconnection done by KP exercising its lawful authority. 22. In response to paragraph 21 of the Supporting Affidavit, indeed it was true that he had posted the judgment on the main door of the suit property. No illegal act had been performed, as it had been done to bring awareness to the 1st Defendant/Applicant on the existing orders which ought to have been complied with. 23. In response to paragraphs 23 – 25 of the Supporting Affidavit, it was crystal clear that the Notice of Motion application filed by the 1st Defendant/Applicant had been simply an afterthought and a knee-jerk reaction to the Plaintiff/Respondent’s application made via Notice of Motion application dated 16th February, 2026, which had sought to evict the Defendant/Applicant from the suit property known as Plot No. Kwale/Diani Complex/1069 pursuant to the Decree dated 4th August, 2025. 24. He had been advised by his advocates on record, which advice he believed to be true, that the maxims of equity provided that “equity aids the vigilant and not the indolent,” and hence the present application under the Notice of Motion application was one such instance. 25. The 1st Defendant/Applicant had failed to seek stay orders early to justify her continued stay in the suit property despite the existing Judgment and Decree. Instead, she had chosen the path of contempt of court orders knowing full well that it had adverse consequences. 26. He had further been advised by his advocates on record, which advice he believed to be true, that one could not approach that Honourable Court with unclean hands the way the Defendant/Applicant had. 27. The 1st Defendant/Applicant could not therefore approach that Honourable Court, albeit late in the day, seeking temporary relief while at the same time showing contempt to the orders of that Honourable Court. 28. Contrary to the averments of the 1st Defendant/Applicant in Paragraph 26 of the Supporting Affidavit, her approach to that Honourable Court seeking stay orders had been merely an afterthought. Otherwise, there was no justifiable explanation as to why she had waited well over the 120 days, being the grace period under the Judgment and Decree, before filing the Notice of Motion application seeking stay orders. 29. In response to Paragraphs 27 – 28 of the Supporting Affidavit, the Plaintiff reiterated the contents of Paragraphs 15 – 18 hereinabove and further stated that the 1st Defendant/Applicant had not been deserving of the orders she had sought. Courts of law did not issue orders in vain, and hence the 1st Defendant/Applicant could not simply seek to be granted orders against the Plaintiff/Respondent and expect them to be obeyed when she was in actual contempt of existing court orders. 30. Whatever had been deponed therein was true to the best of his knowledge, save as to matters deponed to on information, sources whereof had been disclosed, and matters deponed to on belief, the grounds whereupon had been given. 31. **Submissions** 32. On 12th March, 2026 while all the parties were present in Court, they were directed to have the two ( 2 ) Notice of Motion applications dated 16th and 18th February, 2026 be disposed of by way of written submissions and all the parties complied. Pursuant to that all the parties fully obliged and a ruling date was reserved on 18th June, 2026 by the Honourable Court. Eventually, it was delivered on 30th July, 2026 accordingly. 33. **The Written Submissions by the Plaintiff in support of the Notice of Motion Application dated 16th February, 2026** 34. The Plaintiff through the law firm of Messrs. Githiomi Mungai Advocates LLP, filed their written submissions dated 1st May, 2026. Mr. Githiomi Advocate submitted these submissions had been made on behalf of the Plaintiff/Applicant herein in support of the Notice of Motion application dated 16th February, 2026 filed by the Plaintiff/Applicant under Certificate of Urgency and supported by an affidavit of even date sworn by DAVID NEEDHAM seeking the above orders. 35. In response, the Defendant/Respondent filed her Grounds of Opposition dated 12th March, 2026 and the Replying Affidavit of even date sworn by TABITHA NDUNGUopposing the Notice of Motion. Through these submissions, they would seek to persuade this Honorable Court on why the Notice of Motion was merited and therefore, should be allowed. 36. On the brief facts, the Learned Counsel submitted that on 4th August, 2025, this Honorable Court delivered its judgment, wherein it ordered the eviction of the Defendant/Respondent from the land known as Title No. Kwale/Diani Complex/1069 and directed that the Defendant/Respondent vacate the suit property within 120 days from the date of the judgment. The Court further directed that in the event the Defendant/Respondent failed to vacate within the stipulated period, eviction would ensue and that such eviction be carried out in a peaceful, humane and dignified manner. Despite being aware of the Judgment and the Decree subsequently issued on 9th December, 2025, the Defendant/Respondent has willfully failed and/or refused to comply with the orders of this Honorable Court. 37. More than 120 days had since elapsed, yet the Defendant/Respondent continues to unlawfully remain on the Suit Property in blatant disobedience of the orders of this Court. The Plaintiff/Applicant had made several attempts to persuade the Defendant/Respondent to vacate the Suit Property voluntarily and in a dignified manner, but those efforts had been unsuccessful. The Defendant/Respondent’s continued occupation of the Suit Property therefore constitutes willful disobedience of a lawful court order and amounted to a direct affront to the authority and dignity of this Honorable Court. In the circumstances, it was therefore necessary for this Court to intervene to enforce compliance with its orders and to give effect to the judgment delivered on 4th August, 2025. 38. The Learned Counsel relied on the following issues for determination:- 39. Whether the Notice of Motion application dated 16th February, 2026 was competent and properly before this Honorable Court? 40. Whether the law firm of Githiomi Mungai Advocates LLP should be granted leave to come on record for the Plaintiff/Applicant post - Judgment? 41. Whether the Defendant/Respondent is in contempt of court? 42. Whether the Court should grant orders committing the Defendant/Respondent to civil jail? 43. Whether the Court should direct the Officer Commanding Station (OCS) Diani Police Station to provide security during the execution of the eviction 44. On whether the Notice of Motion dated 16th February, 2026 was Competent and Properly before this Honorable Court. The Learned Counsel opined that the 1st Defendant/Respondent had challenged the Notice of Motion application her Grounds of Opposition by contending, *inter alia,* that it was “omnibus”and therefore incompetent and incapable of being sustained. The Eldoret Court of Appeal defined the meaning of “omnibus” in the case of ***“Waweru & 2 Others – Versus - Maina [2026] eKLR”*** as: ***“Pleadings that seek multiple, often contradictory or vague reliefs, or implead numerous parties without specific allegations against each…which bundle numerous, often unrelated requests or broad complaints without specific, substantiated facts…”*** 1. From the foregoing definition, it was evident that what renders an application “omnibus” in the objectionable sense was not the mere fact that it contains multiple prayers, but rather where such prayers are vague, contradictory, unrelated, or incapable of being properly adjudicated due to lack of factual anchoring or coherence. The decisive question therefore was whether the Notice of Motion application contained vague, unrelated, or contradictory reliefs of the kind contemplated in the above definition, or whether the prayers therein arise from a coherent factual foundation and pursue a singular objective capable of determination by this Honorable Court. 2. The Learned Counsel submitted that in the present case, all the reliefs sought in the application arise from a single, clear, and undisputed factual matrix namely, the Defendant/Respondent’s continued failure and refusal to comply with the Judgment and Decree of this Honorable Court delivered on 4th August, 2025. The application is therefore anchored on one central cause of action enforcement of a lawful court judgment. Properly analyzed, the prayers are neither contradictory nor unrelated. The prayer for leave to come on record post - Judgment was procedural and intended to regularize representation in compliance with the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010. The prayers seeking a finding of contempt and committal to civil jail was coercive in nature and aimed at enforcing obedience of court orders. The prayer seeking police assistance was facilitative, intended to ensure that the eviction order is executed in a lawful, orderly, and peaceful manner. 3. These reliefs was therefore logically connected and mutually reinforcing. They constituted a structured enforcement mechanism arising from the same judgment rather than a bundle of unrelated or vague claims. As such, the application never fell within the mischief contemplated in the definition of an omnibus pleading as set out in the case of ***“Waweru & 2 others – Versus - Maina (Supra)”***. 4. In the premises, the Learned Counsel respectfully submitted that the Notice of Motion dated 16th February, 2026 was coherent, properly structured, and grounded on a single factual foundation arising from the Judgment and Decree of this Honorable Court. The prayers sought was neither vague nor contradictory but was instead logically connected and directed towards the enforcement and effective realization of the Court’s orders. The objection that the application was “omnibus” was therefore without legal or factual basis. 5. On whether the Law firm of Githiomi Mungai Advocates LLP should be granted leave to come on record for the Plaintiff/Applicant post -Judgment, the Learned Counsel submitted that the 1st Defendant/Respondent in her Grounds of Opposition had contended that the Law firm of Messrs. Githiomi Mungai Advocates LLP had no right of audience on the basis that the advocates previously on record had not been removed. This contention was misplaced. The present application expressly sought leave of this Honourable Court for the said law firm to come on record post Judgment. 6. The provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 (“CPR”) provides as follows:- **“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court — (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate”** 1. The import of the foregoing provision was that, once Judgment had been delivered, a party who sought to change advocates or to act in person must first obtain the leave of the Court or secure the consent of the outgoing advocate. The above framework was introduced in the CPR to deal with disruptive changes that litigants and advocates used to effect, often for the purpose of unfairly dislodging previous advocates without settling their costs. The courts had consistently affirmed the mandatory nature of this rule. In the case of ***“Equator Bottlers Limited – Versus - Achieng [2025] KLR”***, the High Court in Kisumu held that:- ***“Order 9 Rule 9 makes it mandatory that for any change of Advocates after Judgment has been entered to be effected, then there must be an order of the court upon application with notice to all parties…”*** 1. That notwithstanding, it was not designed to deny a litigant the right to legal representation, but rather to regulate the manner in which such change was effected. As was stated by the Nairobi High Court in the case of:- ***“Republic – Versus - Registrar of Societies & 7 others; Lafa & another (interested parties) [2026] eKLR”***, the court held as follows: ***“In my view, the application for leave for RSG Law Advocates LLP to take over these proceedings after judgment has been properly sought and that no prejudice will be occasioned to any party or to the advocate previously on record as there is no indication that the change of advocates is intended to defeat any claim for costs or otherwise obstruct the course of justice. In the circumstances, and in the interest of substantive justice, I hereby grant leave to the said firm of Advocates to come on record for the Applicants.”*** 1. There was neither no evidence that the outgoing firm of advocates who represented the Plaintiff/Applicant opposed this application nor claim for costs by the outgoing Law firm. This Honorable Court retained unfettered discretion to grant leave where a proper application has been made and where no prejudice would be occasioned to the outgoing firm of advocates. In the present case, the Plaintiff/Applicant has duly complied with the requirements of the provision Order 9 Rule 9 of the CPR, and no objection had been raised by the outgoing firm nor would there be any prejudice suffered if the said order was granted. Furthermore, the Plaintiff had a right to change the legal representatives, if it so deems fit, as long as it was in tandem with the requirements of the law. 2. In the premises, the Learned Counsel humbly submitted that it had duly complied with the requirement of the law and prayed that leave be granted to the firm of Githiomi Mungai Advocates LLP to come on record for the Plaintiff/ Applicant. 3. On whether the Defendant/ Respondent was in contempt of Court, the Learned Counsel submitted that the Black’s Law Dictionary, 11th Edition defines contempt as:- **“The act or state of despising. The quality, state or condition of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usually by fine or imprisonment.”** 1. Contempt of court, therefore, consists of any act or omission that interferes with, or undermines the authority, dignity, or due administration of justice. It encompassed willful disobedience of lawful court orders and directions, conduct which strikes at the very core of the rule of law and the authority of this Honorable Court. The foregoing definition underscored the seriousness with which the law treats contempt of court, as it directly undermines the authority of the Court and the administration of justice. It was for this reason that courts jealously guard their authority and would not hesitate to sanction conduct that amounted to contempt. The law on contempt of court is well settled and anchored on the fundamental principle that court orders are not issued in vain. Parties are under a legal obligation to comply with court orders, and any disobedience thereof amounts to an affront to the authority of the Court and the rule of law. 2. Being quasi-criminal in nature, allegations of contempt must be strictly proved. In the case of ***“Mutitika – Versus - Baharini Farm Limited [1985] KLR”***, the Court of Appeal at Nairobi held that the standard of proof is higher than on a balance of probabilities but not as high as beyond reasonable doubt. 3. In addition to satisfying the requisite standard of proof, the law is equally settled that an applicant must establish the essential ingredients of contempt. These elements define the threshold that must be met before a party could be found in contempt. In the case of ***“Samuel M. N. Maweu & Others – Versus - National Land Commission & 2 others [2020] eKLR”***, the High Court in Nairobi adopted with approval the formulation by the learned authors of the book **‘Contempt in Modern New Zealand’** who succinctly stated that: **“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -** **(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;** **(b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and** **(d) the defendant's conduct was deliberate.”** 1. On clear and unambiguous terms of the order. The Learned Counsel submitted the first requirement in establishing contempt was that the order allegedly disobeyed must be clear and unambiguous. A party could not be held liable for contempt where the terms of the order was uncertain or incapable of compliance. The order must clearly spell out what is required of the alleged contemnor. In the case of:- ***“Rose Detho – Versus - Ratilal Automibiles Limited & 6 others [2007] eKLR”***, the Court of Appeal in Nairobi citied with approval the case of:- ***“Jihan Freighter Limited – Versus - Hardware & General Store Limited [2015] eKLR”*** where it was held that:- ***“The rationale of the requirement that a court order must be clear, precise and easy to understand is founded on the self-evident fact that breach of a court order may result in contempt of court proceedings as well as the severe sanctions, including loss of liberty or property, that are visited upon a contemnor. Accordingly, the grave consequences that attend a violation of a court order ought not to be casually visited upon a person unless and until it is clear what the court order required him to do or to abstain from doing.”*** 1. In present case, the orders of this Honourable Court were precise and unequivocal and, *to wit:* 2. **.………………..** 3. **Eviction of the 1st Defendant from Plot No. Kwale/Diani Complex/1069 and vacant possession thereof within 120 days from the date of delivery of this Judgment.** 4. **That the eviction above shall be peaceful, dignified and carried out in a humane manner should the 1st Defendant fail to vacate at the expiry of the 120 days above.** 5. Court orders was obligatory in nature and not optional. Any violation of the same necessitates a penal sanction as had already been sought by the Plaintiff/Applicant herein. 6. On the knowledge of or proper terms of the Notice of the Order. The Learned Counsel submitted that the second element required proof that the alleged contemnor had knowledge of the order or was given proper notice of it. It was a fundamental principle that no party should be punished for contempt without actual or constructive knowledge of the order. However, the law had evolved such that strict proof of personal service was no longer mandatory where knowledge could otherwise be established. 7. In the case of ***“Shimmers Plaza Limited – Versus - National Bank of Kenya Limited (Supra)”***, the Court of Appeal at Nairobi cited with approval the case of ***“Basil Crticos – Versus - Attorney General and 8 Other [2012] eKLR”*** where Justice Lenaola 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.”*** 1. This position firmly establishes that what is material is not the mode of service, but whether the alleged contemnor had knowledge of the existence and terms of the order. As deponed in the Supporting Affidavit of David Needham, copies of the Judgment and Decree were deemed to have been served after the same were posted on a conspicuous place on the Suit Property i.e., the gate entrance to the Suit Property (as evidenced in Annexure marked as “DN – 2”) on 10th February 2026. This was done as a reminder to the Defendant/Respondent to comply with the same after she became aware of the same when the Judgment was delivered on 4th August 2025. Suffice to say, the Plaintiff/Applicant had satisfied the element of this test given that the Defendant/Respondent was aware of the existing Judgment, and it further went ahead to effect service in accordance with Order 5 Rule 22B of the CPR. 2. On the breach of the terms of the Order. The Learned Counsel argued that the third element requires proof that the alleged contemnor failed to comply with the order. The Court must be satisfied that the terms of the order were not complied with. In the present case, the Judgment of this Honorable Court expressly directed the Defendant/Respondent to vacate the suit property within 120 Days from the date of delivery. The said period had since lapsed, yet the Defendant/Respondent continues to remain in occupation of the suit property in direct contravention of the said orders. The continued occupation of the suit property by the Defendant/Respondent constitutes a clear and unequivocal breach of the orders of this Honorable Court. 3. On the deliberate conduct. The Learned Counsel contended that the final element required that the breach be willful and deliberate. Willfulness was demonstrated when the alleged contemnor knowingly and intentionally refuses to comply with the order. In the present matter, the Defendant/Respondent has made no effort whatsoever to comply with the orders of this Honorable Court. Despite having full knowledge of the Judgment and being afforded a period of 120 Days to vacate the suit property, the Defendant/Respondent had continued to remain in occupation thereof. This continued occupation, in the face of clear and binding court orders and repeated notices, demonstrated a deliberate and willful disregard of the authority of this Honorable Court. The Defendant/Respondent’s conduct was not inadvertent or excusable, but rather a conscious and intentional decision to defy the orders of this Honorable Court. 4. On whether the Court should grant orders committing the Defendant/ Respondent to civil jail. The Learned Counsel argued that having demonstrated that the Defendant/Respondent was in contempt of this Honorable Court, the issue that falls for determination was whether the Court should exercise its coercive jurisdiction to punish the said contempt. It was trite that contempt proceedings was not an end in themselves but was intended to uphold the authority and dignity of the Court, ensure obedience to its orders, and ultimately preserve the rule of law. Without the ability to enforce its orders, the authority of the Court would be rendered illusory. This position was aptly captured in the case of: ***“Kibanga & 72 others – Versus - Land Adjudication and Settlement Officer Taveta & 2 others [2025] KLR”***, where the Environment and Land Court at Voi emphasized that: ***“Courts punish for contempt in order to uphold their dignity and authority; ensure compliance with their directions; observance and respect of due process of law; preserve an effective and impartial system of justice and maintain public confidence in the administration of justice. If there were no sanctions for disobedience of court orders, there would be a serious threat to the rule of law and administration of justice. In that respect, for a party to be cited for contempt, he must have willfully violated or disobeyed a court order directed at him.”*** 1. In the present case, the Defendant/Respondent had been shown to have full knowledge of the orders of this Honorable Court yet has willfully and deliberately refused to comply with the same. The disobedience was not accidental, inadvertent, or excusable, but a sustained and calculated act of defiance, amounting to a direct affront to the authority of this Honorable Court. This Honorable Court should be guided by the decision in ***“Shimmers Plaza Limited - Versus - National Bank of Kenya Limited (Supra)”*** where the Court stated that: ***“The courts should not fold their hands in helplessness and watch as their orders are disobeyed with impunity left, right and center. This would amount to abdication of our sacrosanct duty bestowed on us by the Constitution. The dignity, and authority of the Court must be protected, and that is why those who flagrantly disobey them must be punished, lest they lead us all to a state of anarchy.”*** 1. In light of the foregoing, the continued defiance of this Honorable Court’s orders by the Defendant/Respondent constituted a grave affront to the administration of justice and the rule of law. If left unchecked, it would set a dangerous precedent that would embolden litigants to disregard court orders with impunity. Accordingly, this Honorable Court was urged to exercise its coercive and punitive jurisdiction and impose appropriate sanctions against the Defendant/Respondent. In particular, the Plaintiff/Applicant prayed for an order committing the Defendant/Respondent to civil jail and/or such other orders as this Honorable Court may deem just and expedient in the circumstances, to compel compliance with its lawful orders and to vindicate the authority of the Court. 2. On whether the Court should direct the Officer Commanding Station (OCS) Diani Police Station to provide security during the execution of the eviction. The Learned Counsel submitted that the Judgment of this Honorable Court granted possession of the Suit Property to the Plaintiff/Applicant. Notwithstanding the said orders, the 1st Defendant/Respondent had failed, refused and/or neglected to vacate the Suit Property and continues to remain in unlawful occupation thereof. The 1st Defendant/Applicant’s continued defiance not only undermined the authority of this Honourable Court but also rendered the Plaintiff/Applicant unable to enjoy the fruits of its Judgment. In the circumstances there existed a real, imminent and reasonable apprehension the execution of the eviction orders may be met with resistance, obstruction and confrontation, thereby posing a risk of breach of the peace if not managed properly. 3. In light of the foregoing, and in order to secure compliance with Order (c) of the Judgment, it is just and necessary, and in the interests of justice that this Honorable Court be pleased to direct the Officer Commanding Station, Diani Police Station, to provide adequate police assistance and oversight during the execution of the eviction orders. Such intervention was essential to ensure that the eviction was conducted in a lawful, orderly, and peaceful manner, without obstruction, intimidation or interference by the 1st Defendant/Respondent or any persons acting at their behest. The presence of police officers with further safeguard all parties involved, preserve public order, and facilitate the effective and expeditious enforcement of the Judgment and Decree of this Honorable Court. 4. In conclusion, in light of the foregoing, they submitted that the Defendant/ Respondent had been properly found to be in contempt of the orders of this Honourable Court. The conduct of the Defendant/Respondent demonstrated a clear, deliberate, and willful disregard of binding court orders, thereby undermining the authority of this Court and the administration of justice. Accordingly, the Applicant respectfully prayed that this Honorable Court be pleased to grant the orders sought in the application, including the committal of the Defendant/ Respondent for contempt, and any such further orders as this Honorable Court may deem just and expedient, including directions for enforcement of the eviction with the assistance of the Officer Commanding Station, Diani Police Station. 1. **The Written Submissions to the Notice of Motion application dated 12th February, 2026 by the 1st Defendant.** 2. The 1st Defendant through the Law firm of Messrs. Tindika & Company Advocates filed their written submissions dated 2nd May, 2026. Mr. Tindika Advocate submitted that 1st Defendant/ Applicant filed the Notice of Motion dated the 12th February, 2026, under the provision of Articles 40, 50 and 159 of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 42 Rule 6 (1) and (4) of the Civil Procedure Rules, 2010, Section 19 of the Environment And Land Court Act, No. 19 of 2011 and all other enabling Provisions of the law, wherein she sought for the above stated orders. 3. The Learned Counsel averred that the said application was supported by the Affidavit of TABITHA NDUNGU, sworn on the 12th February, 2026, together with the annextures thereto and also based on the Grounds in the body of the Application. The gist of the Applicant/1st Defendant's Application herein is that Widow of Charles Kamau - Deceased, who, together with Maureen Millet formed a company Escafeld Holdings Limited and proceeded to purchase the suit the property from Plot/Title Number Interested Party being, Plot/Title Kwale/Diani Complex/1069. The Purchase price for the property was fully paid by the said Company through its Directors, whereupon the Interested Party duly executed a Transfer in favour of Escafeld Holdings Limited and handed over the original title deed to the Advocate for the Purchaser, Escafeld Holdings Limited. 4. Having sold the property and handed over the original title deed to the Purchaser’s Advocates, Seller/Interested Party did not have any further right to the property and could not sign the documents he alleges to have signed for the Plaintiff in this matter. After the purchased of the property, the 1st Defendant and her late Husband started construction as per the building Plan prepared for Escafeld Holdings Limited, put their funds in the said construction and thereafter moved into the property in mid-2010, where they lived till the passing on of her Husband and she has continued to live therein up to date. 5. Having been served with Pleadings herein the 1st Defendant not only a Defence but also a Counter - Claim on the basis, inter alia, that her Husband was not only a Co - Director but also a joint owner of the suit property, which he put up a structure and wherein they have been and continue to live. The 1st Defendant strongly invites the Honourable Court to take judicial notice that no transaction took place between the Plaintiff herein and the original owner of the suit property, Andrew Thiaine Imwati, and specifically, the Plaintiff did not pay a single cent for the purchase of the property herein. Further, the 1st Defendant strongly contends that glaringly, the documents the Plaintiff presented before the Land Registrar in order to have the suit property transferred to it were not capable of passing any interest thereof, were never executed and therefore the transfer was grossly fraudulent, which position was supported by the Land Registrar who testified on behalf of the 2nd Defendant. Further, no original title deed was surrendered during the said fraudulent transfer, since the original Title Deed was all along in the custody of Lucy Mbatia, Advocate. 6. The Learned Counsel asserted that thus the 1st Defendant stated that despite her clear demonstration that the manner in which the Plaintiff got the property transferred in its name was utterly fraudulent, illegal and unlawful, the Trial Judge, by Judgment delivered on the 4th August, 2025, allowed the Plaintiff's case and dismissed the 1st Defendant's Counterclaim. Dissatisfied with the whole of the said Judgment, Decree and Orders contained in the Judgment delivered on the 4th August, 2025, the is Defendant filed Notice of Appeal to the Court of Appeal dated the 8th August, 2025 and also requested for Certified Copies of Proceedings and Judgment in this matter, but the same are yet to be supplied by this Honourable Court. 7. Having filed the Notice of Appeal aforesaid, by dint of the mandatory provisions of Order 42 Rule 6 (4) of the Civil Procedure Rules, 2010, an Appeal was already in motion before the Appellate Court. The Applicant has demonstrated that there are actions by the Plaintiff and other persons to evict her from the suit premises. on the 2nd February, 2026, personnel from Kenya Power & Lighting Company Limited visited, Diani/Ukunda visited the property and disconnected though there was no outstanding bill, and thereafter removed the electric meter without any explanation. Further, on the 10th February, 2026, David Needham, the Plaintiff's Director, came to the gate of the property and posted some marks and notices at the main door of the property. 8. According to the Learned Counsel these two occurrences are a clear demonstration of collusion between the Plaintiff, its Director and the Kenya Power & Lighting personnel to illegally, unlawfully and wrongfully evict the 1st Defendant from the suit property, despite the fact that the Judgment of this Honourable Court is gravely being challenged. The Applicant/1st Defendant had a strong legal claim to the suit property due to her late Husband’s direct interest and contribution to the purchase of the land herein; and further, the Applicant contributed financially and personally to the construction and development of the house and buildings standing thereon. Conversely, the Plaintiff did not contribute a single cent to the purchase of the land nor construction and development of the house and buildings standing thereon. Further, the Plaintiff obtained title deed to the suit property fraudulently, illegally, unlawfully and/or wrongfully and thus has no right thereto whatsoever. 9. On the basis of the foregoing, if the Plaintiff is allowed to take over the property, the Applicant and the Estate of her late Husband stand to suffer substantial loss and damage. Consequently, unless restrained by this Honourable Court, the Plaintiff was outrightly determined to illegally, unlawfully and wrongfully remove and/or evict the 1st Defendant from property herein notwithstanding the 1st Defendant and the Estate of her late Husband’s right and claim to the same, in which event the Applicant/1st Defendant and the Estate of her Husband’s would suffer irredeemable and irreparable loss and damage. 10. With regard to the issue of Security, the Applicant deponed that she was ready and willing to execute an Undertaking as to Damages and also undertake to the Honourable Court that she would not interfere with the suit property in a negative way pending the hearing and determination of the Appeal to the Court of Appeal. Lastly, the Applicant averred that she had a very strong case against the Plaintiff and thus if execution was allowed to proceed, the said Appeal would be rendered nugatory and the property may be lost because the Plaintiff's Director, who is a foreigner, may sell the same to a third party. 11. On the issues for determination, the Learned Counsel submitted that the Application herein seeks two (2) broad/main Orders by the Honourable Court, to wit, injunction against the Plaintiff/Respondent and secondly stay of execution of the Judgment and Decree herein pending the hearing and determination of the Appeal to the Court of Appeal. In their Submissions, they would address Stay of Execution then turn to Injunction. 12. The provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010 requires the Applicant to satisfy three conditions, to wit:- 13. Demonstration of a substantial loss being occasioned to the Applicant; 14. Application being filed without unreasonable delay; 15. Provision of security sufficient for the due performance of the decree or order of the court being Appealed against. 16. On whether there would be substantial loss occur to the Applicant if the order for stay of execution was not made. The Learned Counsel argued that substantial loss was the paramount basis upon which a grant of Stay of Execution was usually premised and this has been restated in numerous cases as the deciding factor in Applications for Stay of Execution. Justice Gikonyo F. J. in the case of:- ***“Antoine Ndiaye – Versus - African Virtual University [2015] eKLR”*** while describing the essence of substantial loss, quoted the work of Ogola J. in the case of “***Tropical Commodity Suppliers Ltd”*** that:- ***“Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.”*** 1. The ELC Court in the case of ***“Jaber Mohsen Ali & Another – Versus - Priscillah Boit & another [2014] KEELC 132 (KLR)”***, held that: - ***“9. The applicant needs to demonstrate three elements. There must be demonstration that substantial loss will result if stay is not granted; secondly, the application must be made without unreasonable delay; and finally, there needs to be security for the due performance of the decree. Much has been said about the respective strengths of the cases of the parties but that is not a consideration under Order 42 Rule 6. Apart from the three elements, the essence of an application for stay pending appeal is aimed at preserving the subject matter of litigation to avoid a situation where successful appellant only gets a paper judgment.”*** 1. On the same issue, the High Court, in the case of ***“RWW – Versus - EKW [2019] KEHC 6523 (KLR)”*** held: ***“8. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.*** ***10. I have proceeded to determine whether the conditions stipulated for grant of stay have been met. On whether the appellant will suffer substantial loss, I am reminded of the sentiments of Gikonyo J in James Wangalwa & another – Versus - Agnes Naliaka Cheseto Misc Application No 42 of 2011 [2012] eKLR.*** ***No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.*** ***The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein – Versus - Chesoni [2002] 1KLR 867, and also in the case of Mukuma – Versus - Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:*** ***“….the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”*** 1. According to the Learned Counsel submitted that the 2nd Defendant/Applicant had deponed she and her Family had been living in the suit property from the year 2010 to date. However, subsequent to the delivery of the Judgement in the matter herein, by the terms of which her Counter - Claim was dismissed there was threats to evict her and her Family from the said property. The Applicant had averred and demonstrated that the property in contention was developed with substantive financial and personal contributions by her late Husband and they proceeded to construct the house where they was currently living. She further deponed that the Plaintiff never contributed a single cent to the purchase of the property, but proceeded to fraudulently, illegally, unlawfully and wrongfully transfer the property in its name including use of documents that were incapable of registration. 2. On the face of the serious legal and factual questions to be determined by the Court of Appeal, substantial loss would be occasioned to the 2nd Defendant/Applicant if the execution of the Decree emanating from the Judgment herein was not stayed pending the hearing and determination of the Appeal against the said Judgment. The position in this matter was further supported by the position in the case of ***“Mukuma – Versus - Abuoga [1988] KECA 107 (KLR)”*** where the Court of Appeal held:- ***“5. Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being - (a) whether substantial loss may result unless the stay is granted and the application is made without******delay; and (b) the applicant has given security. The discretion under Rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore, it is necessary to preserve the status quo.*** ***6. In this case, the issue between the parties was whether the land was sold or leased. If the Plaintiff is right that the land was sold, and specific performance in transferring the land is ordered, to be evicted from the land at this stage would obviously imperil the Plaintiff. A great outlay of capital has been extended and the plaintiff would lose the home her husband, herself and her family have built up since 1967. It is obvious that the Plaintiff would suffer substantial loss.*** ***7. But it is said that the appeal has no chance of success. We do not subscribe to that view. There is a serious argument which might go either way. The order ought to be made on terms that the Plaintiff secures the costs of the appeal and the mesne profits ordered by the High Court.*** ***8. We would therefore grant the application in both forms, namely (a) that there be stay of execution of the order for eviction; and (b) an injunction restraining the respondent from taking possession or dealing in any manner with the suit premises pending the hearing of the appeal.*** 1. Clearly and as the Court of Appeal explicitly stated, substantial loss was the cornerstone of both jurisdictions, in this case, the Environment and Land Court and the Court of Appeal. The Applicant averred, which the Plaintiff, whose Director was a foreigner, may sell or dispose of the property to a third party, and which property had two original title deeds, and in the event that happens, the property would be totally lost. There was thus urgent need for the orders sought to be issued so that the substratum of the Appeal was preserved. This was because an execution would render the Appeal to the Court of Appeal nugatory, which could not be the business of any Court, to frustrate the appellate process. 2. On whether this Application been brought without undue delay. The Learned Counsel averred that the Judgement which was the subject of the Appeal to the Court of Appeal was delivered on the 4th August, 2025, and the Applicant, being dissatisfied with the whole of the said Judgment filed Notice of Appeal to the Court of Appeal dated the 8th August, 2025 and also requested for Certified Copies of Proceedings and Judgment in this matter for the purpose of lodging an Appeal to the Court of Appeal, but the said typed and Certified Proceedings, Judgment and Decree was yet to be supplied by this Honourable Court. Since the Decree in the matter was yet to be issued, coupled with the fact that the crucial documents emanating from the Honourable Court was yet to be supplied, they submitted that the Application herein had been filed within a reasonable time in the totality of the circumstances of the case. 3. On whether the Applicant had provided due security for the performance of the order being challenged. The Learned Counsel submitted that the Applicant had offered security and has deponed in her Affidavit that she was ready and willing to execute an Undertaking as to Damages. Further, she had also undertaken to the Honourable Court that she would not interfere with the suit property in a negative way pending the hearing and determination of the Appeal to the Court of Appeal. 4. The Applicant had expressly undertaken: (a). To provide undertaking as to damages, (b). Not to interfere with the property. The dispute herein concerns land (not monetary decree), which the Applicant was and has, for more than 16 years been in possession, and we thus submit that the undertaking(s) offered was sufficient because what was in contention between the parties herein would be preserved. In the case of:- ***“Focin Motorcycle Company Limited – Versus - Ann Wambui Wangui & another [2018] KEHC 8358 (KLR)”*** where the Court held:- ***14. The second consideration is security. The Applicant has deponed that he is ready to provide security. It is the Court which determines the security upon ordering stay to ensure the due performance of the obligations by the applicant as to costs and to satisfy the decree. It is therefore sufficient to depose that he is ready to provide security. The applicant has submitted that he has ability to provide security as will be ordered by the Court as it is a company with substantial investments in the County and once called upon by the Court will avail such security. In Arun C Sharma - Versus - Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated that:*** ***“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the Judgment Debtor..........Civil process is quite different because in civil process the Judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”*** 1. The Court emphasized that stay of execution could not be for the purpose of punishing the Judgment debtor, which would be the consequence of the orders sought herein was not granted. They submitted that the twofold undertakings would be sufficient security in the matter herein. 2. On whether the subject matter of the appeal must be preserved and effectively the orders of stay of execution should issue. The Learned Counsel averred the central issue that the Appellate Court would be called to address was conflicting claims to the ownership of ALL THAT Property known as Plot/Title Number Kwale/Diani Complex/1069 by the Plaintiff and the to 1st Defendant through her late husband and the legal purchaser of the same Escafeld Holdings Limited. 3. In the case of:- ***“Equity Bank Limited – Versus - West Link Mbo Limited (Civil Application 78 of 2011) [2013] KECA 320 (KLR)”***, on the foregoing issue, P. O. Kiage JJA, held as follows:- ***“….in David Nkanate Magiri – Versus - Benard Benedict Mungania & 4 Others Civ. Appl. Nai 253 OF 2011, a case cited by the Respondent, and submitted that it represented the correct position of law regarding inherent jurisdiction;*** ***“The court has jurisdiction either under the overriding objective principle or under the inherent jurisdiction of the Court as stipulated in Rule 1 (2) of the Court of Appeal Rules 2010, to grant any interlocutory order that may be necessary for the ends of justice, even on its [own] motion as a court of justice. In our view, it is just in the circumstances that the suit property should be preserved pending the determination of the appeal……….An appeal represents society's continued need for certitude that justice has been done. It is a recognition of human fallibility so that even where a judge has expressed himself in clear terms, he is alive to the fact he could be wrong or be found to have been wrong by a court higher than himself. Thus, even when a litigant is said to have succeeded and has a decree in his favour, it could turn out to be a temporary victory in case the judge should be reversed. The clearest demonstration of this essential tension that I have come across is in the English case of Erinford Properties Limited – Versus - Cheshire County Council [1974] 2 ALL ER 448 where Megarry J, having dismissed an interlocutory motion for injunction, nevertheless entertained and granted an injunction pending appeal from the said refusal at the instance of the losing applicant. Explaining the seeming contradiction, the Learned Judge expressed himself in the following manner, with which I respectfully agree;*** ***I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question is whether the applicant had made out a sufficient case to have the respondent restrained pending the trial.... On the other hand, where the application is for an injunction pending appeal, the question is*** ***whether the judgment that has been given is one which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions, and at the other extreme a judge may be very clear in his conclusions yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations for their errors than for judges. A judge who feels no doubt in dismissing a claim for an interlocutory injunction may, perfectly consistent with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending appeal are such that it would be right to preserve the status quo pending appeal. I cannot see that a decision that no injunction should be granted pending trial is inconsistent, either logically or otherwise, with holding that an injunction should be*** ***granted pending on appeal against the decision not to grant the injunction, or that by refusing an injunction pending the trial the judge becomes functus officio quad granting any injunction at all…....the Court, in its exercise of discretion, may consider the convenience of interlocutory orders within the context of the appeal itself. Interlocutory reliefs, in this respect, may be apposite by ensuring that the appeal is not rendered nugatory and this not only serves the cause of fairness in dispute settlement, but also ensures that the ultimate decision of the court bears the intended constitutional authority.”*** ***As to the source of jurisdiction with regard to stay pending appeal;*** ***In our opinion The Supreme Court's jurisdiction in respect of of- execution orders, firstly interlocutory orders, such as stay emanates directly from the statute law and the rules; and secondly, rests on the rational principle that the appellate power of 'review and possible reversal' of the substantive judgment appealed against, is destined to be lost unless a requisite interlocutory order was made. This principle is well recognized in comparative judicial experience. In Bremer Vulcan Schiffbar and Maschinen fabrick – Versus - South Indian Shipping Corporation Ltd [1981] AC 909, Lord Diplock in relation to the inherent powers of the High Court, typified such powers as enabling the court to take necessary actions to maintain its character as a court of justice. According to Lord Diplock, it would stultify the constitutional role of the court if as a court of justice it were not armed with power to prevent its process being misused, in such a way as to diminish its capability to arrive at a just decision of the dispute. It is clear to us that if interlocutory applications are excluded as a necessary step*** ***to preserve the subject matter of an appeal, the Supreme Court's capability to arrive at a just decision on the merits of the appeal would be substantially diminished. Both the constitution and the Supreme Court Act have granted the court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”*** 1. The Learned Counsel submitted that flowing from the elaborate Ruling of the Court of Appeal on the jurisdiction and duty of the Court to grand stay of execution and/or injunction pending the hearing and determination of the Appeal, they strongly submitted that though this Honourable Court having dismissed the Applicant’s Counter - Claim, had jurisdiction, responsibility and mandate to issue the Orders of stay of execution to preserve the suit property, which was the central subject matter of the Appeal to the Court of Appeal, but also to ensure that the said Appeal would not be rendered nugatory, which would be the consequence if the Application herein was not allowed. 2. Further, and in the same Decision of ***“Equity Bank Limited – Versus - West Link Mbo Limited (Supra)”***, the Honourable Justice M'inoti, JA held as follows:- ***“Regarding the first prong, Mr. Gatonye submitted that so long as the Court of Appeal has jurisdiction under the Constitution to hear appeals, which is not disputed, the power to stay execution pending the hearing and determination of the appeal can be read into Article 164 (3). He saw the power to preserve the subject matter of the appeal as an integral part of the jurisdiction to hear appeals. He submitted that the power presently conferred in the Court of Appeal by Rule 5 (2) (b) does not have to be expressly conferred by the Constitution, statute or rules. It is a power that is inherent in the Court when it is exercising the jurisdiction conferred upon it by the Constitution to hear appeals. It is an intrinsic, natural, innate power of the Court given due recognition in Rule 1 (2) of the Court of Appeal Rules……….Since the arguments in this case were conclude, the Supreme Court has had the opportunity to pronounce itself on the issue presently before us, as it relates to the jurisdiction of the Supreme Court. In an opinion rendered on 8th May, 2013 in the Board of Governors, Moi High School Kabarak & Another – Versus - Malcom Bell, (Supreme Court Petition Nos. 6 And 7 of 2013), the Supreme Court was faced with an application for stay of execution pending the hearing and determination of an appeal that had been certified by the Court of Appeal as raising a matter of general public importance under Article 163 (4) (b) of the Constitution. A preliminary objection was raised that the Supreme Court did not have jurisdiction to entertain interlocutory applications and that its jurisdiction was restricted by Article 163(3) and (4). In dismissing the objection, the Supreme Court stated as follows in para. 33:*** ***“[33] It is clear to us that if interlocutory applications are excluded as a necessary step to preserve the subject-matter of an appeal, the Supreme Court's capability to arrive at a just decision on the merits of the appeal, would be substantially diminished. Both the Constitution and the Supreme Court Act have granted the Court the appellate jurisdiction; and within that jurisdiction, the parties are at liberty to seek interlocutory reliefs, in a proper case.”*** ***Sichale JA. One can actually see that in the event that the proceedings were to be ready, a litigant would be able to file the appeal and an application for relief contemporaneously as it happens in applications for injunctions in the Superior Court. Why then would a litigant be shut out in an application for stay to preserve the subject matter of an appeal because the Court has not facilitated the compilation of a record to enable a litigant lodge an appeal and an application for stay at the same time?*** ***I agree with Mr. Abdullahi that justice cuts both ways but in an application under Rule 5 (2) (b) the Court is merely being asked to preserve the subject matter of the appeal pending an appeal. It is my further considered view that with the Judicial Transformation, a decree holder should not have to wait inordinately in order to reap the fruits of his/her judgment. There must be a speedy conclusion of appeals so that the Court does not 'incubate' injustice either for the decree holder or the judgment debtor.*** 1. The Learned Counsel asserted that as evident from the foregoing, this Court, like all other Courts, has the power but also the responsibility to preserve the subject matter of the appeal, and consequently, a litigant should not be shut out an Application to preserve the subject matter. Turning to Temporary Injunction Pending Appeal, the applicable principles was well settled ***“Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358”*** wherein the Court of Appeal held:- 2. An applicant must show a prima facie case with a probability of success; 3. An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury; 4. When the Court is in doubt, it will decide the application on the balance of probabilities 5. On the prima facie face, the Learned Counsel submitted that the same is defined in ***“Mrao Limited (Supra)”*** in the following terms:- ***“17.*** ***So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. The Applicant’s position is that the property purchased herein was by Escafeld Holdings Limited wherein her late Husband was the majority shareholder and Director, and the said Company, through its Directors, paid the purchase price in full. However, subsequent thereto, the same property was fraudulently, illegally, unlawfully and wrongfully transferred to Plaintiff, during which process documents incapable of registration were utilized and the original title deed to the property was never surrendered, which position was admitted by the Land Registrar who testified on behalf of the 2nd Defendant. 2. Further, under the provision of Section 26 (1) of the Land Registration Act No. 3 of 2012, Title obtained through fraud or illegality is impeachable. Further the Court of Appeal in the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [2015] KECA 816 (KLR)”*** held that a title deed obtained through fraud cannot be protected holding inter alia:- ***It is in my view unjust and inequitable that an innocent proprietor can be dispossessed of his or her legal title to land through the acts of a fraudster, and this cannot have been the intention of section 23 of the Registration of titles Act. I am persuaded by the statements made in Alberta Mae Gacii – Versus - Attorney General & 4 Others (2006) eKLR where this court (Hon. Justice Onyancha) stated as follows:*** ***“Cursed should be the day when any crook in the streets of Nairobi or any town in this jurisdiction, using forgery, deceit or any kind of fraud, would acquire a legal and valid title deceitfully snatched from a legal registered innocent proprietor. Indeed, cursed would be the way when such a crook would have the legal capability or competence to pass to a third party, innocent or otherwise, a land interest that he does not have even if it were for valuable consideration. For my part, I would want to think that such a time when this court would be called upon to defend such crooks, has not come and shall never come…..”*** 1. From the foregoing, they submitted that not only had the Applicant demonstrated that she had a prima facie case but also a very strong arguable appeal exists. The responsibility to thus preserve the subject matter of the Appeal, which was the property herein, was authoritatively set out in ***“Butt – Versus - Rent Restriction Tribunal [1979] KECA 22 (KLR)”*** where the Court held:- ***“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best*** ***discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson – Versus - Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:*** ***“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”*** ***Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited – Versus - Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge's decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General v Emerson and Others 24 QBD (1889) 56 at p 59. The special circumstances in this case are that there is a large amount of rent in dispute between the parties and the appellant has an undoubted right of appeal.*** 1. Though this Honourable Court, differently constituted, dismissed the 1st Defendant's Counter - Claim and allowed the claim in the Plaint, there would be no contradiction in issuing the orders of injunction and stay of execution of the Judgment as sought in the Application herein, since the Honourable Court was called upon to take deliberate steps to prevent the decision of Court of Appeal being rendered nugatory should the said Court reverse the Judge's decision, and thus they submitted that the special circumstances of this case so require. 2. On the irreparable harm. The Learned Counsel submitted that turning to the second principle, in the ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others, Civil Appeal No. 77 Of 2012, Nairobi, [2014] eKLR (CA)”*** Court held:- ***“29. On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot " adequately" be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”*** 1. The Applicant, as well as her late Husband, made tremendous investments in the suit property, to which the Plaintiff made zero investment and paid zero cent of any currency, yet had the property fraudulently transferred to it. Refusal to grant the orders sought would mean that the property was left in the hand of a party that made no input nor investment in the property and whose Director was a foreigner who might dispose the same. Further, the Applicant would be exposed to eviction from matrimonial home whereupon she and her Husband’s Estate would lose the developments thereon with the consequent loss of their proprietary interest and the land/property, which was a unique property. 2. They strongly submitted that the loss that the Applicant would suffer if the orders sought herein are not granted will undoubtly occasion her and the Estate of her late Husband irreparable loss and damage. This was to be added to the risk of rendering the Appeal to the Court of Appeal if the later Court were to reverse the Judgment herein. 3. On the balance of convenience. Lastly, on the issue of balance of convenience, the Learned Counsel argued that it tilted in favour of the Applicant because she had and still was in possession of property and occupation thereof, which she and her Husband had extensively developed. Conversely the Respondent/Plaintiff had made no investment at all on the property but fraudulently, illegally, unlawfully and wrongfully managed to had it registered in its name, despite the fact that the original title deed for the property was still alive and available to the purchaser thereof, Escafeld holdings Limited. 4. Clearly, the Plaintiff/Respondent risked no loss nor prejudice if the orders of stay of execution and inunction was granted so that the status quo that had operated all the years, was maintained. Thus re - emphasize the balance tilted in favour of the Applicant because that was what carried the lower risk of injustice, which was a standard set in the case of:- ***“Amir Suleiman – Versus - Amboseli Resort Limited (Civil Case 1078 of 2003) [2004] KEHC 2624 (KLR) (Civ)”*** that the Court should opt for the lower risk of injustice:- ***“Learned Counsel also made remarks about another case in the Plaintiff's bundle, Films Rover International Limited and others – Versus - Cannon Film Sales Limited [1986] 3 ALL E.R. 772, at pp 780 - 781 (Hoffmann, J):-*** ***The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeed (or would succeed) at trial. A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”*** ***The principle set out in the Films Rover International case is in my view, most germane to the instant matter, even though learned counsel considered it to be entirely English and “wholly irrelevant”. In counsel’s view, Giella – Versus - Cassman Brown answers to all local needs so far as applications for injunctions are concerned.”*** 1. Given the full facts of the totality of matter the route with the lower risk of injustice would be to preserve the property as it had always been so that the Appeal before the Court of Appeal was fully heard and determined. 2. On the further grounds for allowing the application. The Learned Counsel submitted that as they finalized on the application, they retaliated that this was a matter where two (2) original title deeds on the same property was in existence, one that which was handed over by the Interested Party to the Advocate for the legal purchaser thereof Escafeld Holdings Limited where the Applicant's late Husband was a Director but also the major shareholder, and the second one by the Plaintiff which was obtained through presentation of documents that were not executed and thus incapable of registration but also though they did not surrender the original title deed, proceeded to have another title deed issued for the same property and to a person who no consideration for the same. 3. This was a serious issue for determination by the Court of Appeal demanding that the property needs to be preserved otherwise if the Plaintiff, a Company owned by a foreigner, was allowed into the property, the same may be lost and thus if the Applicant succeeded in the Appeal, there may be no property available thus rendering the Appellate process illusory and thus nugatory. In the case of:- ***“WG & 5 others – Versus - RNW & 4 others (Civil Application E011 of 2022) [2022] KECA 960 (KLR)”***, the Court held:- ***“7. On the arguability of the intended appeal, we reiterate that an arguable appeal is not one that must succeed, it is one that raises a ground that ought to be fully argued. See Stanley Kang'ethe Kinyanjui – Versus - Tony Ketter & 5 Others [2013] eKLR. Having perused the record before us, and the response by the 1st respondent and, in particular, the concession by the respondents that indeed the applicants may have an arguable appeal, particularly on the grounds that, the learned judge erred by failing to take judicial notice that a Christian marriage under Section 6(2) of the Marriage Act is a monogamous marriage and therefore declaring the 1st Respondent a second wife of the patient was an error; and that such declaration was in any event premature, having been made at an interlocutory stage, we are satisfied that the limb on arguability has been proved.*** ***8. On the nugatory aspect, in Stanley Kang’ethe Kinyanjui – Versus - Tony Ketter & 5 Others (supra) this Court stated that:*** ***“ix). The term "nugatory" has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. x). Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.”*** 1. On the constitutional underpinning. The Learned Counsel submitted that the Application is anchored on Article 40 of the Constitution of Kenya 2010 which guarantees protection of property rights, and Article 50 guaranteeing right to fair hearing which includes the Appeal to the Court of Appeal which the Applicant was pursuing and lastly, Article 159 providing for according of substantive justice as opposed to taking shortcuts and technicalities in determination of cases. 2. In conclusion, the Learned Counsel submitted that on the basis of the arguments above. The Learned Counsel urged the Honourable Court to find that sufficient grounds and reasons had been advanced and thus find there are merits in the Application and thus grant orders of stay of execution of the Judgment delivered on the 4th August, 2025 and further injunctive orders pending the hearing and determination of the Appel to the Court of Appeal. They also pleaded for an award of the costs of the Application to the Applicant. 3. **The Written Submissions by the Plaintiff/ Respondent opposing the Notice of Motion application dated 18th February, 2026** 4. The Plaintiff through the Law firm of Messrs. Githiomi Mungai Advocates LLP, filed their written submissions dated 19th May, 2026. Mr. Githiomi Advocate submitted that these written submissions have been made on behalf of the Plaintiff/Respondent herein in opposition to the Notice of Motion application dated 18th February, 2026 filed by the 1st Defendant/Applicant under Certificate of Urgency and supported by an affidavit of even date sworn by TABITHA NDUNGU seeking the above orders. 5. The Learned Counsel submitted that in response, Plaintiff/Respondent filed its Replying Affidavit dated 11th March, 2026 sworn by DAVID NEEDHAM opposing the Notice of Motion application. Through these submissions, they sought to persuade this Honorable Court on why the Notice of Motion application was not merited and therefore, should be dismissed with costs to the Plaintiff/Respondent. 6. On the brief facts, the Learned Counsel submitted that the 1st Defendant/ Applicant’s Notice of Motion application was seemingly, a knee-jerk reaction to the orders sought by the Plaintiff/Respondent’s in its Notice of Motion application dated 16th February, 2026. The 1st Application had sought the enforcement of the Judgment dated 4th August, 2025 in respect to the property known as Title No: Kwale/Diani Complex/1069 in respect to order (II) which directed that:- (I) ………………………………… (II) the eviction above shall be peaceful, dignified and carried out in a humane manner should the 1st Defendant fail to vacate at the expiry of the 120 days above. (III) …………………………………. (IV) …………………………………. 1. Pursuant to the 1st Application being filed and consequential orders thereon being issued on 18th February, 2025, the Defendant/Applicant proceeded to file Notice of Motion seeking, inter alia, the stay of execution of the Judgment. The stay orders sought were premised on the fact that the 1st Defendant/Applicant had filed a Notice of Appeal application dated 8th August, 2025. However, the decision being appealed against was a non - existent decision as there was no Judgement delivered in this present suit by Honorable Mr. Justice E. Makori J., delivered on 31st day of July, 2025. The Defendant/Applicant later on filed an Amended Notice of Appeal dated 16th February, 2025 seeking to amend the initial Notice of Appeal. This was done well over 197 days from the date of the Judgment and without seeking the leave of this Honorable Court. 2. The Learned Counsel relied on the following issues for determination based on the above foregoing facts, the issues which were up for determination were as follows:- 3. Whether the 1st Defendant/Applicant’s Notice of Appeal dated 8th August, 2025 and the Amended Notice of Appeal dated 16th February, 2026 was valid? 4. Whether the 1st Defendant/Applicant was entitled to grant of stay of execution of the Judgment dated 4th August, 2025? 5. Whether the 1st Defendant/Applicant had met the threshold for the grant of an order of temporary injunction under Order 40 of the Civil Procedure Rules, 2010? 6. Whether the 1st Defendant/Applicant’s Notice of Motion application was an attempt to re - open matters conclusively determined by this Honorable Court? 7. Whether the Defendant/Applicant was in contempt of court? 8. On whether the 1st Defendant/ Applicant’s Notice of Appeal dated 8th August, 2025 and the Amended Notice of Appeal dated 16th February, 2026 were valid, the Learned Counsel submitted that the 1st Defendant/Applicant lodged a Notice of Appeal dated 8th August, 2025 which was, on its face, fundamentally defective and incapable of sustaining an appeal. The said Notice provides as follows: ***“…the 1st Defendant herein, being dissatisfied with the of the entire judgment and/or Decree of the Honorable Mr. Justice E. Makori J delivered at Malindi on the 31st day of July, 2025…”*** 1. A plain and careful reading of the foregoing revealled a glaring and incurable defect. The Notice of Appeal does not, in any way, refer to the Judgment. Instead, it purports to challenge a completely different decision allegedly rendered by a different Judge, in a different court, and on a different date altogether. Such a defect was neither clerical nor typographical error; it is a substantive and material defect that went to the very identity of the decision sought to be appealed against. In the present case, the Notice of Appeal does not, *prima facie*, disclose any intention to appeal against the Judgment**.** Instead, it was directed at a Judgment that was wholly unrelated to the proceedings herein. As such, the Notice was defective *ab initio* and could not sustain any appeal before the Court of Appeal. 2. The above position finds support in the decision of the Nairobi Court of Appeal in the case of:- ***“Kenya Shell Limited – Versus - James G K Njoroge [2000] KLR”*** where the Court stated that:- ***“…A notice of appeal lodged on behalf of the applicant in the superior court on 10th July, 1997 was struck out by this Court on 7th July, 1998. It was struck out as it purported to be a notice of appeal against a purported ruling by Hayanga, J allegedly delivered on 8th July, 1997 when no such ruling was delivered…”*** 1. The reasoning in the said authority applied with even greater force to the present case. Here, the defect was not merely that the impugned decision was non - existent but the Notice of Appeal referred to an entirely different Judgment thereby rendering it wholly disconnected from the intended appeal. It was noteworthy that only after the Plaintiff/Respondent filed the 1st Application did the 1st Defendant/Applicant attempt to rectify the defect by lodging an Amended Notice of Appeal dated 16th February, 2026. That attempt, however, was legally untenable. 2. A Notice of Appeal may only be amended as of right within the prescribed period for filing and any amendment outside that period can only be effected with leave of the court. It was evident that the Defendant/Applicant lodged the Notice of Appeal outside the required statutory timelines without obtaining the leave of this Honorable Court. Consequently, the Amended Notice of Appeal, having been filed outside the statutory timelines and without leave of Court, was itself incompetent and incapable of curing the fundamental defects in the original Notice of Appeal. In the premises, both the Notice of Appeal and the Amended Notice of Appeal was invalid, incurably defective and devoid of any legal effect. 3. On whether the Defendant/ Applicant was entitled to grant of stay of execution of the Judgment dated 4th August, 2025. The Learned Counsel submitted that the grant of stay of execution was an equitable remedy founded on the discretionary jurisdiction of this Honorable Court. It was not granted as a matter of right but is guided by settled principles of equity, justice, and judicial discretion. It was a fundamental principle of equity that he who comes to equity must come with clean hands. A party seeking the Court’s discretionary indulgence must demonstrate good faith, full compliance with existing court orders, and respect for the authority of the Court. Closely related was the doctrine of approbation, which prohibits a litigant from blowing hot and cold. The 1st Defendant/Applicant cannot, on one hand, disregard binding court orders and, on the other hand, sought the protection of the same Court whose authority she had already undermined. 4. In the present case, the Applicant sought the discretionary relief of stay of execution while remaining in continued non-compliance with the express orders of this Honorable Court contained in the Judgment. The Applicant had neither complied with nor demonstrated respect for the binding nature of the said Judgment. This conduct was inconsistent with the equitable jurisdiction of this Honorable Court. It demonstrated a litigant seeking to benefit from the Court’s processes while simultaneously disregarding its authority, thereby disentitling itself to the favorable exercise of discretion. The Applicant’s entitlement to stay of execution was also fundamentally undermined by the absence of a valid and competent Notice of Appeal capable of anchoring any appellate process. 5. It followed that in the absence of a valid Notice of Appeal; there existed no competent appeal or arguable appellate process capable of being preserved by an order of stay. Consequently, the basis upon which an application for stay may be considered was absent. Accordingly, on this ground alone, the 1st Defendant/Applicant was not entitled to the equitable relief of stay of execution. 6. The Learned Counsel submitted without prejudice to the foregoing, and assuming arguendo that this Honorable Court was to consider the application under the provision of Order 42 Rule 6(2) of the Civil Procedure Rule, 2010 (“CPR”) the 1st Defendant/Applicant was still required to satisfy the conditions for the grant of stay of execution provided therein. Order 42 Rule 6(2) of the CPR provides that:- **“No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and** **(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”** 1. The foregoing provision vests this Honorable Court with wide and unfettered discretion to grant orders of stay of execution pending appeal which must be exercise judiciously and upon defined principles of law; not capriciously or whimsically. It was now well settled that the three conditions set out in Order 42 Rule 6 (2) of the CPR was cumulative and mandatory, and an applicant must satisfy all of them before this Honorable Court could exercise its discretion in granting an order of stay. In the case of :- ***“James Wangalwa & another (Supra)”*** the High Court in Bungoma emphasized that: - ***“These conditions are the essence of Order 42 Rule 6 CPR which I need not recite in verbatim. The conditions share an inextricable bond such that the absence of one will affect the exercise of the discretion of the court in granting stay of execution.”*** 1. Flowing from the foregoing, the requirement to demonstrate substantial loss is the cornerstone of an application for stay of execution pending appeal a was held in the case of ***“Ashitiba – Versus - Akafwale [2023] KLR”***, where the Environment and Land Court at Kakamega citing with approval the case of ***“Kenya Shell Limited – Versus - Benjamin Karuga Kibiru & Another [1986] KLR”*** observed that:- ***“Substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal. It is virtually impossible for such an application to succeed if an applicant fails to demonstrate that he will suffer substantial loss if stay is not granted.”*** 1. The requirement to demonstrate substantial loss was further elaborated in the case of ***“James Wangalwa & Another (Supra)”***, where the High Court at Bungoma held that:- ***“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold… does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essence of the appeal… Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”*** 1. From the foregoing, it was clear that substantial loss was not established by the mere fact that a Judgment was being executed. Accordingly, the 1st Defendant/Applicant must go further and demonstrate that the intended execution would occasion a loss of such a nature that it would defeat the purpose of the appeal and render it nugatory and the 1st Defendant/Applicant must demonstrate, with evidence, the nature of the loss they was likely to suffer, and that such loss was not capable of being compensated by damages. Applying the foregoing principles, this Honorable Court was invited to consider the affidavit evidence placed before it, namely the 1st Defendant/Applicant’s Supporting Affidavit. A substantial portion of the Supporting Affidavit at Paragraphs 2 – 10 and 23, was devoted to allegations that the 1st Defendant/Applicant’s late husband contributed to the purchase of the suit property, that the Plaintiff/Respondent did not pay for the property, and that the title held by the Plaintiff/Respondent was fraudulently obtained. 2. According to the Learned counsel, these averments, with respect, relate to issues of ownership, contribution, and alleged fraud, all of which were fully canvassed and conclusively determined by this Honorable Court in its Judgment. They do not constitute substantial loss within the meaning of Order 42 Rule 6 (2) of the CPR, as they merely amount to a challenge to the merits of the Judgment of this Honorable Court and a desire to re-open matters already determined, rather than demonstrating any real, imminent, or irreparable loss that would arise from the execution of the Decree. The 1st Defendant/Applicant further contended that the Plaintiff/Respondent was intent on evicting her from the Suit Property and may dispose of the same to third parties, thereby rendering the intended appeal nugatory (see paragraph 23 of the Supporting Affidavit). However, this contention was speculative and unsupported by any evidence. The Applicant had not placed before this Honourable Court any material to demonstrate that such disposal is imminent or that the Plaintiff/Respondent would act in a manner that would defeat the appeal. 3. More importantly, the Applicant had not demonstrated that any loss arising from execution would be irreparable or incapable of compensation by damages. This was a critical omission, as the law requires proof of loss beyond the ordinary consequences of execution. The 1st Defendant/Applicant’s assertions amount to mere dissatisfaction with the Judgment and apprehension regarding execution, which, as held in the case of ***“James Wangalwa & Another – Versus [Supra]”*** eKLR, does not amount to substantial loss. 4. The Learned Counsel submitted that in the circumstances, the 1st Defendant/Applicant had not demonstrated any specific or tangible loss she stood to suffer. The allegations raised was general, speculative, and unsupported by evidence, and therefore fall short of the legal threshold required. The second condition under the provision Order 42 Rule 6 (2) of the CPR, was that an application for stay of execution must be made without unreasonable delay, the determination of which depends on the circumstance of each case. In the case of ***“Jaber Mohsen Ali & Another - Versus - Priscillah Boit & Another [2014] eKLR”***, the Environment and Land Court at Eldoret held:- ***“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter.”*** 1. In the present case, the Judgment of this Honorable Court was delivered on 4th August 2025. Subsequently, the 1st Defendant/Applicant filed a defective Notice of Appeal dated 8th August, 2025, which, *prima facie*, did not properly relate to the present matter. A Notice of Appeal is the foundation upon which an appeal is anchored, as recognized in the Nairobi Court of Appeal case of ***“Equity Bank Limited – Versus - West Link Mbo Limited (Supra)”***. Consequently, the Learned Counsel argued that where such a Notice was defective, it could not sustain an appeal in law, and the appellate process was rendered incompetent *ab initio*. In the premises, the defective Notice of Appeal was defective and could not properly be construed as a valid Notice of Appeal capable of invoking the appellate jurisdiction of the Court of Appeal. It followed that no effective Notice of Appeal was properly lodged within the prescribed 14-day period. 2. It was only several months later, specifically six (6) months thereafter, on 16th February, 2026, that the 1st Defendant/Applicant filed an Amended Notice of Appeal, long after the delivery of Judgment and far beyond the prescribed timelines to file a notice of appeal and this underscored a clear pattern of delay and disregard of the timelines imposed by the law. This inordinately delayed attempt to cure a fundamentally defective process underscores a clear pattern of delay and a disregard for the timelines imposed by the Court of Appeal Rules, In the circumstances, the conduct of the 1st Defendant/Applicant fell short of the standard of diligence required of a party seeking the Court’s discretion, and militated against the grant of the stay orders sought. 3. The cumulative effect of the 1st Defendant/Applicant’s conduct namely, filing a defective Notice of Appeal, delaying in taking steps to file a proper and relevant Notice of Appeal, and only moving the Court when execution loomed, amounted to inordinate and unexplained delay. In the circumstances, the Applicant had failed to satisfy the mandatory requirement that the Notice of Motion application be made without unreasonable delay. This failure disentitles the 1st Defendant/Applicant to the equitable relief of stay of execution. The 1st Defendant/Applicant’s attempted to attribute the delay to the alleged application for typed proceedings was misplaced and untenable. The mere request for proceedings never *per se* justify or excuse the inordinate delay complained of. 4. A party seeking the equitable discretion of this Honorable Court was under a duty to demonstrate diligence and to satisfactorily account for the entire period of delay. In the present case, the Applicant had neither demonstrated any proactive steps taken to expedite the preparation of the proceedings nor provided a reasonable explanation for the substantial lapse of time between the filing of the defective Notice of Appeal and the filing of the Amended Notice of Appeal. The explanation offered is therefore hollow and incapable of excusing the inordinate and unexplained delay. 5. The third condition under the provision of Order 42 Rule 6 (2) of the CPR was that an Applicant must furnish such security as this Honorable Court may order for the due performance of the decree. The purpose of this requirement as held by the Malindi High Court in the case of:- ***“Gianfranco Manenthi & another – Versus - Africa Merchant Assurance Company Limited [2019] eKLR”***, was to ensure that the successful party was not deprived of the fruits of their Judgment, and that, in the event the appeal failed, the decree remained enforceable without undue prejudice. In the present application, the Applicant had neither offered nor demonstrated any willingness to comply with this requirement. This failure, taken together with the Applicant’s inability to demonstrate substantial loss and the existence of unreasonable delay, was sufficient to defeat the 1st Defendant/Applicant’s prayer sought in respect of grant of stay of execution in its entirety. 6. On whether the 1st Defendant/Applicant had met the threshold for the grant of an order of temporary injunction under the provision of Order 40 of the Civil Procedure Rules, 2010. The Learned Counsel submitted that the grant of a temporary injunction was an equitable remedy governed by well-established principles. In the case of:- ***“Kamau -Versus - Karanja [2022] (KLR)”***, the Environment and Land Court at Thika citing with approval the case of ***“Giella – Versus - Cassman Brown & Co. Ltd (Supra)”***, stated the criteria upon which courts exercise jurisdiction to grant interlocutory injunctive reliefs and outlined as follows:- ***“First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that unless the interlocutory injunctive relief is granted, he would stand to suffer*** ***irreparable damage that may not be adequately indemnifiable through an award of damages. Third, where there is doubt on either of the above two limbs, the court is to determine the application based on the balance of convenience.”*** 1. Before examining the Applicant’s case against these principles, it is necessary to first consider what constitutes a prima facie case. A prima facie case was defined in the case of ***“Mrao Ltd -Versus - First American Bank of Kenya Ltd & 2 Others (Supra)”*** where the Court of Appeal in Mombasa stated as follows: ***“…it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. According to the Learned Counsel, in the present case, the 1st Defendant/ Applicant anchored her application on allegations relating to ownership of the Suit Property and alleged contribution towards its acquisition. However, these issues were fully heard, exhaustively evaluated, and conclusively determined by this Honourable Court in its Judgment delivered on 4th August, 2025. In light of the foregoing, the 1st Defendant/Applicant’s attempt to revisit the same issues under the guise of establishing a prima facie case is misconceived. The 1st Defendant/Applicant was, in effect, inviting this Honorable Court to sit on appeal over its own Judgment, which was impermissible. Accordingly, the 1st Defendant/Applicant had failed to demonstrate a prima facie case with any probability of success. 2. Furthermore, the 1st Defendant/Applicant had not demonstrated that it stood to suffer irreparable injury that could not be adequately compensated by an award of damages. The averments relied upon by the 1st Defendant/Applicant in her Supporting Affidavit was vague, speculative, and supported by any cogent evidence and fail to meet the stringent threshold required for the grant of an equitable remedy. In any event, the balance of convenience tilted in favor of the Plaintiff/Respondent. The Plaintiff/Respondent was the successful party having obtained Judgment of this Honourable Court on 4th August, 2025and was entitled to enjoy the fruits of that Judgment. To grant the orders sought would unjustifiably delay the execution of a lawful and binding Judgment, thereby perpetuating the Applicant’s continued occupation of the Suit Property without legal basis and occasioning further prejudice to the Plaintiff/Respondent. 3. On whether the 1st Defendant/Applicant’s Notice of Motion application was an attempt to reopen matters conclusively determined by this Honorable Court. The Learned Counsel submitted that the 1st Respondent/Applicant through both its Supporting Affidavit and Replying Affidavit, raised issues relating to alleged contribution towards the purchase of the suit property, ownership of the property and allegations of fraud in the acquisition of title. The above issues were fully pleaded, exhaustively canvassed and conclusively determined by this Honourable Court in its Judgment delivered on 4th August, 2025. This Honourable Court rendered a final determination on the merits of the dispute between the parties. It was a settled principle of law that litigation must come to an end. Courts never existed to permit parties to endlessly re - open concluded matters under the guise of interlocutory applications. 4. According to the Learned Counsel, in the present case, the Applicant’s averments sought to re - open issues already determined on merit by this Honorable Court. It was also a well-established principle that a court became functus officio upon delivery of its final judgment and could not re - visit or re-adjudicate the merits of its decision, save for limited exceptions such as review or correction of clerical errors. The above position was emphasized by the Nairobi Court of Appeal in the case of:- ***“Telkom Kenya Limited – Versus - John Ochanda (Suing on His Own Behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR”*** where the court stated as follows:- ***“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors, nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its Judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”*** 1. The effect of the doctrine was that this Honorable Court, having delivered its Judgment on 4th August, 2025, it became functus officio in respect of the issues therein determined. It could not be invited, through a stay application, to revisit or indirectly re - evaluate its final findings. Accordingly, any attempt by the Applicant to reintroduce issues of ownership, contribution, or alleged fraud was an impermissible collateral attack on a final judgment of this Court and constitutes an abuse of the process of the Court. The Nairobi Court of Appeal in the case of ***“Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 others [2009] KLR”*** where the Court stated that: ***“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.”*** 1. According to the Learned Counsel, in the present case, the Applicant’s application, to the extent that it sought to re - visit issues already determined, falls squarely within the category of an abuse of the process of the Court. A stay of execution was a preservatory remedy pending appeal and not a forum for re-opening the merits of a concluded judgment. The Applicant’s approach improperly sought to convert the present application into a disguised appeal against the Judgment of this Honorable Court. In the premises, the application was misconceived, offends the doctrines of finality of litigation and constitutes an abuse of the process of the Court. 2. On whether the 1st Defendant/Applicant was in contempt of court. The Learned Counsel submitted that the Black’s Law Dictionary, 11th Edition defines contempt as:- **“The act or state of despising. The quality, state or condition of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable, usually by fine or imprisonment.”** 1. Contempt of court, therefore, consists of any act or omission that interferes with, or undermines the authority, dignity, or due administration of justice. It encompasses willful disobedience of lawful court orders and directions, conduct which strikes at the very core of the rule of law and the authority of this Honorable Court. The foregoing definition underscores the seriousness with which the law treats contempt of court, as it directly undermines the authority of the Court and the administration of justice. It was for this reason that courts jealously guard their authority and would not hesitate to sanction conduct that amounts to contempt. 2. The law on contempt of court was well settled and anchored on the fundamental principle that court orders was not issued in vain. Parties was under a legal obligation to comply with court orders, and any disobedience thereof amounts to an affront to the authority of the Court and the rule of law. The 1st Defendant/Applicant sought to justify its non - compliance with the Judgment of this Honourable Court on the basis, express or implied, that the filing of a Notice of Appeal operates as an automatic stay of execution under the provision Order 42 Rule 6 (4) of the CPR, thereby insulating it from contempt proceedings. 3. That position was legally untenable. Order 42 Rule 6 (4) of the CPR does not create an automatic stay of execution upon filing of a Notice of Appeal. It merely defined the procedural framework within which an application for stay may be made. It never suspended, nullify, or render unenforceable a Judgment of this Honourable Court. It was trite law that stay of execution was not automatic upon filing a Notice of Appeal. It was a discretionary remedy which must be specifically sought and granted upon satisfaction of the conditions set out under the provision of Order 42 Rule 6 (2) of the CPR. In the absence of such an order, the Judgment remained valid, binding, and enforceable. 4. Furthermore, the provision of Order 42 Rule 6 (1) of the CPR expressly provides that:- **“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”** 1. According to the Learned Counsel submitted that in the present case, no order of stay had been issued by this Honorable Court or any appellate court. The Judgment therefore remained fully operative and enforceable at all material times. Accordingly, the 1st Defendant/Respondent could not lawfully rely on a pending Notice of Appeal or procedural invocation of Order 42 Rule 6 (4) of the CPR as a shield against compliance with court orders. It followed that the foundation of the alleged defence to contempt was legally unsustainable, and the 1st Defendant/Applicant remained under a continuing legal obligation to comply with the Judgment of this Honorable Court. 2. Being quasi-criminal in nature, allegations of contempt must be strictly proved. In the case of ***“Mutitika – Versus - Baharini Farm Limited [1985] KLR”***, the Court of Appeal at Nairobi held that the standard of proof was higher than on a balance of probabilities but not as high as beyond reasonable doubt. 3. In addition to satisfying the requisite standard of proof, the law was equally settled that an applicant must establish the essential ingredients of contempt. These elements define the threshold that must be met before a party can be found in contempt. In the case of ***“Samuel M. N. Maweu & Others – Versus - National Land Commission & 2 others [2020] eKLR”***, the High Court in Nairobi adopted with approval the formulation by the learned authors of the book, Contempt in Modern New Zealand, who succinctly stated that:- ***“There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -*** ***(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant;*** ***(b) the Defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and*** ***(d) the Defendant's conduct was deliberate.”*** 1. On clear and unambiguous terms of the order. The Learned Counsel submitted that the first requirement in establishing contempt is that the order allegedly disobeyed must be clear and unambiguous. A party could not be held liable for contempt where the terms of the order were uncertain or incapable of compliance. The order must clearly spell out what was required of the alleged contemnor. In the case of:- ***“Rose Detho – Versus - Ratilal Automibiles Limited & 6 others [2007] eKLR”***, the Court of Appeal in Nairobi citied with approval the case of:- ***“Jihan Freighter Limited – Versus - Hardware & General Store Limited [2015] eKLR”*** where it was held that:- ***“The rationale of the requirement that a court order must be clear, precise and easy to understand is founded on the self-evident fact that breach of a court order may result in contempt of court proceedings as well as the severe sanctions, including loss of liberty or property, that are visited upon a contemnor. Accordingly, the grave consequences that attend a violation of a court order ought not to be casually visited upon a person unless and until it is clear what the court order required him to do or to abstain from doing.”*** 1. In the present case, the orders of this Honorable Court were precise and unequivocal and, to wit: **(a) .………………..** **(b) Eviction of the 1st Defendant from Plot No. Kwale/Diani Complex/1069 and vacant possession thereof within 120 days from the date of delivery of this Judgment.** **(c) That the eviction above shall be peaceful, dignified and carried out in a humane manner should the 1st Defendant fail to vacate at the expiry of the 120 days above.** 1. The Learned Counsel submitted that Court orders were obligatory in nature and not optional. Any violation of the same necessitates a penal sanction as had already been sought by the Plaintiff/Applicant herein. 2. On the knowledge of or proper terms of the Notice of the Order. The Learned Counsel submitted that the second element requires proof that the alleged contemnor had knowledge of the order or was given proper notice of it. It was a fundamental principle that no party should be punished for contempt without actual or constructive knowledge of the order. However, the law had evolved such that strict proof of personal service is no longer mandatory where knowledge can otherwise be established. 3. The Learned Counsel relied on the case of:- ***“Shimmers Plaza Limited (Supra”)***, where the Court of Appeal at Nairobi cited with approval the case of ***“Basil Crticos -Versus - Attorney General and 8 Other [2012] eKLR”*** where Justice Lenaola 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.”*** 1. According to the Learned Counsel, this position firmly establishes that what was material was not the mode of service, but whether the alleged contemnor had knowledge of the existence and terms of the order. 3.7.19. As deponed in the Supporting Affidavit of David Needham, copies of the Judgment and Decree were deemed to have been served after the same were posted on a conspicuous place on the Suit Property i.e. the gate entrance to the Suit Property (as evidenced in Annexure as “DN – 2”) on 10th February, 2026. This was done as a reminder to the Defendant/Respondent to comply with the same after she became aware of the same when the Judgment was delivered on 4th August, 2025. Suffice to say, the Plaintiff/Applicant had satisfied the element of this test given that the Defendant/Respondent was aware of the existing Judgment, and it further went ahead to effect service in accordance with the provision of Order 5 Rule 22B of the CPR. 2. On the breach of the terms of the order. The Learned Counsel submitted that the third element required proof that the alleged contemnor failed to comply with the order. The Court must be satisfied that the terms of the order were not complied with. In the present case, the Judgment of this Honorable Court expressly directed the Defendant/Respondent to vacate the suit property within One Hundred and Twenty (120) Days from the date of delivery. The said period had since lapsed, yet the Defendant/Respondent continued to remain in occupation of the suit property in direct contravention of the said orders. 3. The continued occupation of the suit property by the Defendant/Respondent constituted a clear and unequivocal breach of the orders of this Honorable Court. 4. On the deliberate conduct. The Learned Counsel submitted that the final element requires that the breach be willful and deliberate. Willfulness is demonstrated when the alleged contemnor knowingly and intentionally refuses to comply with the order. In the present matter, the 1st Defendant/Respondent had made no effort whatsoever to comply with the orders of this Honorable Court. Despite having full knowledge of the Judgment and being afforded a period of one hundred and twenty (120) days to vacate the suit property, the 1st Defendant/Respondent had continued to remain in occupation thereof. This continued occupation, in the face of clear and binding court orders and repeated notices, demonstrated a deliberate and willful disregard of the authority of this Honorable Court. The 1st Defendant/Respondent’s conduct was not inadvertent or excusable, but rather a conscious and intentional decision to defy the orders of this Honorable Court. 5. In conclusion, the Learned Counsel submitted that from the foregoing, the 1st Defendant/Applicant had failed to satisfy the mandatory requirements for the grant of stay of execution under the provision of Order 42 Rule 6(2) of the CPR. In particular, the 1st Defendant/Applicant had failed to demonstrate substantial loss, had approached this Honourable Court after unreasonable and unexplained delay, and had not furnished security for the due performance of the decree. Further, the 1st Defendant/Applicant had not met the threshold for the grant of a temporary injunction under the provision of Order 40 of the CPR, having failed to establish a *prima facie* case, irreparable harm, or that the balance of convenience tilts in its favor. The application was, in essence, an attempt to delay and frustrate the lawful enforcement of a valid Judgment of this Honourable Court delivered on 4th August, 2025, without any sufficient legal or evidential basis. 6. In the premises, they respectfully urged that this Honourable Court be pleased to dismiss the 1st Defendant/ Applicant’s application with costs to the Plaintiff/ Respondent. 7. **The Written Submission in opposition to the Plaintiff’s Notice of Motion Application dated 16th February, 2026 by 1st Defendant** 8. The 1st Defendant through the firm of Messrs. Tindika & Company Advocates filed their written submissions dated 3rd June, 2026. Mr. Tindika Advocate commenced his submissions by stating that these written submissions were filed on behalf of the 1st Defendant/Respondent in opposition to the Plaintiff/Applicant’s Notice of Motion dated 16th February, 2026 seeking, “*inter alia”*, leave for Change of Advocates post - Judgment, citation of the 1st Defendant/Respondent for Contempt of Court, Committal to Civil Jail, and police-assisted eviction from Title No. Kwale/Diani Complex/1069 - the suit property. 9. The 1st Defendant/Respondent opposes the Application in its entirety on the grounds set out in the Replying Affidavit sworn on 12th March, 2026 and Grounds of Opposition dated the 12th March, 2026 submitted that the Application was legally untenable, procedurally defective, premature, malicious, and intended to defeat the Respondent's pending Appeal before the Court of Appeal. 10. The Learned Counsel submitted that the Application failed to meet the strict legal threshold required in Contempt Proceedings and further amounted to an abuse of the process of this Honourable Court. 11. On the issues for determination, the Learned Counsel relied on the following issues for determination: 12. Whether the firm of Githiomi Mungai Advocates LLP was properly on record? 13. Whether the existence of a pending Appeal and Application for stay militated against the orders sought? 14. Whether the orders sought ought to issue? 15. Whether the Applicant had established the legal threshold for Contempt of Court? 16. Who should bear the costs of the Application? 17. On whether the firm of Githiomi Mungai Advocates LLP was properly on record. The Learned Counsel submitted that the Messrs. firm of Githiomi Mungai Advocates LLP lacked proper audience before this Honourable Court as there was no evidence that the previous advocates on record, namely ABK Advocates LLP, had ceased acting or consented to the change as required under the provision of Order 9 Rule 9 of the Civil Procedure Rules. Order 9 Rule 9 of the Civil Procedure Rules was couched in mandatory terms and requires that after Judgment had been entered, Change of Advocates could only be effected either: 18. By an order of the court upon application with notice to all parties; or 19. Upon filing of a consent between outgoing and incoming advocates. 20. The purpose of the Rule was explained in the case of: ***“Lalji Bhimji Sanghani Builders & Contractors – Versus - City Council of Nairobi [2012] eKLR”***, where the Court held that the provisions of Order 9 Rule 9 are mandatory and intended to protect Advocates from being removed from record without notice after Judgment. The Applicant had not demonstrated compliance with the mandatory procedural requirements, also there has no compliance of any of the said mandatory requirements, and therefore the Application was incompetent ab initio and ought to dismissed outrightly on the said Ground. In the said case, the Court held:- 21. In the case of:- ***“Monica Moraa – Versus - Kenindia Assurance Co. Limited [2012] eKLR”***, Sitati, J delved into the provisions of Order 9 Rule 9 and expressed herself as follows: - ***“......there is no doubt in my mind that the issue of representation is critical especially in cases such as this one where the applicant's advocates intend to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/s. Kibichiy & Co. Advocates should have sought this court's leave to come on record as acting for the applicant... The firm of M/s. Kibichiy & Co. Advocates has not complied with the rules and instead, have just gone ahead and filed a Notice of Appointment without following the laid down procedure. The issue of representation is a vital component of the civil practice and the courts cannot turn a blind eye to situations where the rules are flagrantly breached... The mischief Order 9 of the Civil Procedure Rules intended to address was to protect advocates or firms of advocates being replaced without Notice and without their legal fees being settled. In as much as M/s. Kibichiy & Co. Advocates were holding brief for M/s. Hamilton Harrison & Mathews Advocates it was important that they come on record properly and should have filed a consent and/or made an application seeking leave as provided for under Order 9 Rule 10 of the Civil Procedure Rules.*** ***On my part I, with respect, associate myself with the views expressed by learned Judge's in the said case. Accordingly, the application dated 19th March, 2012 is incompetent and is struck out with costs to the respondent.*** 1. The Learned Counsel opined that similar situation applies in this matter as the Advocates purporting to act foe the Plaintiff/Applicant have not complied with the mandatory provisions of the law, and thus the Application filed by them was grossly incompetent and had to be struck out or dismissed with costs to the 1st Defendant/Respondent. The foregoing position should convince this Honourable Court to put to an end the Plaintiff/Applicant's said Application dated the 16th February, 2026 by striking or dismissing the same. They however, and despite the said position, address the other issues as hereunder:- 2. On whether the existence of a pending Appeal and application for stay militated against the orders sought, the Learned Counsel submitted that the 1st Defendant/ Respondent had demonstrated that there exists a pending Appeal and an Application for stay of execution and injunction pending Appeal. The central issues concerning ownership of the suit property, the legality of the title, allegations of fraud, and the competing proprietary interests was all matters pending determination before the Court of Appeal. 3. The 1st Defendant/Respondent had deponed that the suit property was acquired through Escafeld Holdings Limited by her late husband and that the Plaintiff/Applicant's title was contested on grounds of illegality and fraud. These were not frivolous allegations. The Court of Appeal in the case of:- ***“Butt – Versus - Rent Restriction Tribunal (Supra)”*** held that the power to grant stay pending appeal was intended to preserve the subject matter so that an appeal was not rendered nugatory, stating thus:- ***“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson – Versus - Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:*** ***“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”*** ***Megarry J, as he then was, followed Wilson (supra) in Erinford Properties Limited – Versus - Cheshire County Council [1974] 2 All ER 448 at p 454 and also held that there was no inconsistency in granting such an injunction after dismissing the motion, for the purpose of the order is to prevent the Court of Appeal’s decision being rendered nugatory should that court reverse the judge's decision. The court will grant a stay where special circumstances of the case so require, per Lopes LJ in the Attorney General – Versus - Emerson and Others 24 QBD (1889) 56 at p 59. The special circumstances in this case are that there is a large amount of rent in dispute between the parties and the appellant has an undoubted right of appeal.*** 1. This was a matter where the 1st Defendant/Respondent filed an Appeal by lodging a Notice of Appeal immediately after the Judgement was delivered, a clear demonstration that she was pursuing her undoubted right of Appeal. Further, the special circumstances in this case are that the Plaintiff obtained the title deed to the suit property fraudulently, never paid a single cent for the same, (which position had never been disputed), the Director was a foreigner. The state of the matter herein was that the legality of the title, allegations of fraud, and the competing proprietary interests was all matters pending determination before the Court of Appeal, and thus the property herein need to be preserved as sought in the 1st Defendant/Respondent's Application aforesaid. 2. Similarly, in the case of:- ***“RWW – Versus - EKW [2019] KEHC 6523 (KLR)”***, the Court held that the purpose of stay of execution was to preserve the substratum of the appeal, and held:- ***“8. The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her Judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs”.*** 1. The Learned Counsel contended that the 1st Defendant/Respondent submits that eviction at this stage would irreversibly alter the status quo and render the pending Appeal nugatory. The Plaintiff/Applicant's own conduct demonstrates urgency not in enforcement of lawful process but in defeating the pending Appeal. The 1st Defendant/Respondent further submitted that the Applicant’s allegations that she was unlawfully occupying the suit property. It was contested matters that ought to await final determination by the Court of Appeal. 2. On whether contempt of Court proceedings can substitute execution proceedings. The Learned Counsel averred that the Plaintiff/Applicant had improperly invoked contempt proceedings as a substitute for execution. The law provided elaborate mechanisms for execution of decrees under the provision Order 22 of the Civil Procedure Rules, 2010. The Learned Counsel further argued that ordinary execution processes remain available and the Plaintiff/Applicant ought to pursue those procedures lawfully and within Constitutional safeguards. The 1st Defendant/Respondent further disputes the Applicant's allegations that any humane or dignified attempts were made to secure vacant possession. On the contrary, the 1st Defendant/Respondent had deponed that the Applicant unlawfully disconnected electricity and posted notices at the property in an attempt to intimidate and unlawfully force her out of the premises. Such conduct disentitles the Plaintiff/Applicant from the equitable and discretionary reliefs sought. 3. The Plaintiff/Applicant's Application herein was based, *inter alia*, on the provision of Section 38 of the Civil Procedure Act, Cap. 21 and Order 22 of the Civil Procedure Rules, 2010. The Court of Appeal in ***“Kyoga Hauliers Limited – Versus - Long Distance Truck Drivers & Allied Workers Union [2015] KECA 718 (KLR)”*** held:- ***Under Section 38 of the Civil procedure Act and Order 22 of the Civil Procedure Rules, there are only 5 modes of execution of the decree; by delivery of any property specifically decreed, attachment and sale, or by sale without attachment, of any property, attachment of debts, arrest and detention in prison of the Judgment Debtor and by appointing a receiver. Certainly contempt proceedings is not one of them*** 1. According to the Learned Counsel the same position obtained in this matter. There was no provision for citing a party for Contempt of Court under the provision of Section 38 of the Civil Procedure Act, Cap. 21 nor Order 22 of the Civil Procedure Rules, 2010 in execution of a Decree. Thus, they submitted that the Application herein was grossly misplaced and the Orders therein sought cannot issue as purported or at all. 2. On whether the Applicant had established the legal threshold for Contempt of Court and/or whether the Defendant is in. The contention by the Learned Counsel that Contempt proceedings was quasi-criminal in nature and the standard of proof required was higher than on a balance of probabilities though not beyond reasonable doubt. Their strong position was that in the case of:- ***“Mutitika – Versus - Baharini Farm Limited [1985] KLR 229”***, the Court of Appeal held:- ***“The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt.”*** 1. Firstly, the Plaintiff/Applicant had failed to demonstrate proper extraction and personal service of the Decree and/or order together with a penal notice upon the 1st Defendant/Respondent. The Court in the case of:-***“Shimmers Plaza Limited – Versus - National Bank of Kenya Limited [2015] eKLR”*** held that although personal service may not always be necessary where knowledge was proved, the Applicant must nevertheless establish willful and deliberate disobedience. The Plaintiff/Applicant had merely alleged non - compliance without demonstrating deliberate and contumacious conduct on the part of the 1st Defendant/Respondent. The 1st Defendant/Respondent has expressly demonstrated that she lodged a Notice of Appeal dated 8th August, 2025 against the entire Judgment immediately after delivery thereof in exercise of her undoubted right of Appeal. 2. Under the provision of Order 42 Rule 6 (4) of the Civil Procedure Rules:- **“For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.”** 1. Consequently according to the Learned Counsel, there was a valid and subsisting Appeal process before the Court of Appeal. The 1st Defendant/ Respondent had further explained that the delay in filing the Record of Appeal had been occasioned by the delay in obtaining certified proceedings and judgment from the Court. The Plaintiff/ Applicant had not controverted these matters. They thus submitted that it was incorrect and misleading for the Plaintiff/Applicant portray the 1st Defendant/ Respondent as a contemnor when she is actively pursuing lawful appellate remedies provided under the law. 2. The Learned Counsel asserted that the present Application never met the strict threshold required for contempt proceedings, and in any event, it has been demonstrated that the Appellate process kicked in soon after the Judgment herein was delivered and an Application for Stay of Execution of the said Judgment and injunction pending Appeal had already been filed. 3. On whether the orders sought ought to issue. The Learned Counsel submitted that the orders sought in the Application herein was by a Firm that was not properly on record and thus ought to be struck out outrightly and ab initio. Further, the it had been demonstrated that there was no law that allowed the purported Contempt of Court as a means of executing a Decree whether under the provision Section 38 of the Civil Procedure Act or Order 22 of the Civil Procedure Rules, 2010 and thus the said Application was not only grossly misplaced but the said Orders was drastic, punitive, and disproportionate in the circumstances. The Court was urged to uphold constitutional values under the provision Articles 25, 28, 47, and 50 of the Constitution relating to dignity, due process, and fair hearing, including the hearing of the Appeal to the Court of Appeal. 4. The 1st Defendant/Respondent reiterated willingness to abide by lawful court processes pending the hearing and determination of the Appeal and the Application for stay, and specifically preservation of the suit property and undertakes not to interfere with the suit property in any adverse way pending the hearing and determination of the Appeal to the Court of Appeal. In the circumstances, the Application was devoid of merit and ought to be dismissed. 5. In conclusion, the Learned Counsel submitted that the Plaintiff/ Applicant had approached this Honourable Court through a Law firm of Advocates that was not properly on record. The application was procedurally defective, premature, and an abuse of the court process. The orders sought would unjustly prejudice the Respondent and render the pending Appeal nugatory. 6. The 1st Defendant/ Respondent therefore humbly prayed that the Notice of Motion dated 16th February, 2026 be dismissed with costs to her. 7. **Analysis and Determination** 8. I have carefully read and considered the pleadings herein – the two applications dated ………and 18th February, 2026 respectively…………, the affidavits filed, and the relevant statutory provisions and the myriad of authorities cited by the parties. 9. In order to arrive at an informed decision, the Honourable Court has framed the following six ( 6 ) salient issues for determination: 10. ***Whether the Law firm of Messrs. Githiomi Mungai Advocates LLP is properly on record for the Plaintiff/Applicant Post - Judgment.*** 11. ***Whether the Notice of Motion application dated 16th February, 2026 seeking to cite the Defendant/Respondent for contempt of court for wilful disobedience of the Judgment delivered on 4th August, 2025 and the consequential Decree issued on 9th December, 2025 is merited.*** 12. ***Whether the Plaintiff/Applicant has demonstrated sufficient grounds to warrant committal of the Defendant/Respondent to civil jail or the imposition of other sanctions as the Court may deem fit.*** 13. ***Whether the Plaintiff/Applicant has established sufficient basis for the intervention of the Officer Commanding Station (OCS), Diani Police Station, and/or other police officers to provide security and maintain peace during the execution of the eviction orders.*** 14. ***Whether the Notice of Motion application dated 18th February, 2026 by the Defendant herein has any merit – on meeting the threshold of being granted temporary injunctive orders and the Stay of Execution of the Judgement and the Decree delivered by this Honourable Court on 4th Day of August, 2025 pending the preferring of an appeal before the Court of Appeal.*** 15. ***Who will bear the costs of the Notice of Motion applications dated 16th and 18th February, 2026.*** ***ISSUE No. a). Whether the Law firm of Messrs. Githiomi Mungai Advocates LLP is properly on record for the Plaintiff/Applicant Post -Judgment.*** 1. Under this sub–title, the main issue here is whether the firm of firm of Messrs. Githiomi Mungai Advocates LLP is properly on record for the Plaintiff/Applicant post - Judgment. The underpinning legal provisions for legal representation is outlined in the provision of Order 9 Rules 5, 9 and 10 Civil Procedure Rules, 2010 that: - **“5.Change of advocate [Order 9, Rule 5.] A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the Court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.** **9.Change to be effected by order of Court or consent of parties [Order 9, rule 9.]When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.** **10.Procedure [Order 9 Rule 10.] An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”** 1. The rationale behind these provisions is to ensure orderly conduct of proceedings, prevent prejudice to other parties, and protect advocates from being unfairly displaced after judgment without settlement of their costs. Accordingly, for a valid change of Advocates to be effected after Judgment, Court order must issue either on application or by consent filed in Court. Such an application need not be separate from the substantive application as the prayers for change of advocates can be dealt first but within the same application which may contain other prayers as may be desired by an Applicant. 2. It is evident that before a Notice of Change of Advocates can only be filed after Judgment has been delivered, it must be preceded by either an application wherein an incoming advocate seeks leave to come on record for a party or by a consent between the outgoing and proposed incoming advocate or party intending to act in person as the case may be. On this legal preposition, I wish to also borrow from the case of***“Kazungu Ngari Yaa – Versus - Mistry v Naran Mulji & Co.”*,**where the court in considering the provision of Order 9 Rule 9 held as below: - ***“The provision envisage two different scenarios and the only commonalities are that, there has been a judgment and there was advocate on record previously. In first scenario under (a), the new advocate or the party in person makes a formal application to the Court with notice to all parties who participated in the suit for grant of leave to come on record or act in person. Under this first scenario, the consent of the previous advocate is not necessary, but the party must give notice to the other parties and then satisfy the Court to grant leave. In the second scenario under (b), the new advocate or party in person needs to secure the written consent of the previous advocate on record, file the consent in Court and then seek leave to come on record. My understanding of the scenario under (b) is that a formal written application is not necessary and that once the written consent has been filed, an oral or informal application would be sufficient to move the Court.”*** 1. Additionally, in the case of:- ***“Ahamed Mohamud Adam – Versus - Jimmy Tomino & 2 Others Nakuru HCCC No. 244 of 1998”*** where the Learned Judge held that:- ***“The mischief that was intended to be cured by the provisions of Order 3 rule 9A was to ensure that after judgement, a change of advocates was not effected without notifying the advocate who was on record. In other words, it was meant to secure the interest of the advocate who acted for the party up to the judgement.”*** 1. The provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, then there must be an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. The reasoning behind the provision was well articulated in the case of ***“S. K. Tarwadi – Versus - Veronica Muehlmann [2019] eKLR”*** where the judge observed as follows: ***“…In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”*** 1. In the case of ***“Lalji Bhimji Shangani Builders & Contractors – Versus - City Council of Nairobi [2012] eKLR”*** the Court held as follows: ***“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”*** 1. The court went further to quote with approval the holding by Hon. Sitati Judge, in the case of:- ***“Monica Moraa – Versus - Kenindia Assurance Co. Limited [2010] eKLR”*** where the court held as follows: ***“……there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the Applicant’s advocates intent to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/s. Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the Applicant. The firm of M/s. Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….”*** 1. As per the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 the correct procedure that was to be followed in the present case, was that counsel coming on record ought to have sought leave of the court to come on record, then file and serve the notice of change of Advocates before filing the application to set aside the orders of the Court. 2. In the present matter, judgment was delivered on 4th August, 2025. The Plaintiff/Applicant was represented by Counsel up to that point. The current application dated 16th February, 2026 had been filed through Githiomi Mungai Advocates LLP, who expressly seek leave to come on record Post - Judgment. The Court must first determine the issue of representation before addressing the substantive prayers relating to contempt and enforcement. By seeking leave, the firm has complied with the mandatory requirements of the Civil Procedure Rules. 3. The purpose of Order 9 Rule 9 Civil Procedure Rules, 2010 was aptly discussed in the case of ***“Serah Wanjiru Kung’u – Versus - Peter Munyua Kimani [2021] eKLR”*** where the Court struck out an application by Advocates who were not properly on record: ***“13. The above framework was introduced in the Civil Procedure Rules to deal with disruptive changes that litigants and advocates used to effect, often for the purpose of unfairly dislodging previous advocates without settling their costs. The provision on filing a consent between the outgoing and the incoming law firms was intended to ease the process of effecting change of advocates post-judgment. In my view, once the consent is executed and filed and a notice of change is filed, the new law firm is properly on record. The adoption of the consent as an order of the Court is merely intended to make the Court record clear for avoidance of doubt…”*** 1. In the case of ***“Jackline Wakesho – Versus - Aroma Cafe [2014] eKLR”*** the Court held as follows; ***“Although the foregoing objection appears like a technical procedural issue, this Court finds that the default by the Applicant goes to the jurisdiction of the Court to entertain the motion. The reason for the foregoing reasoning is that the Court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi. The Court has been asked to invoke the oxygen principle under Section 1A and 1B of the Civil Procedure Act and entertain the Motion. The Court will not however do that. The reason for the foregoing is twofold. Firstly, there are several judicial pronouncements cited by the claimant which show that Courts have over the time declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9….”*** 1. Clearly the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after Judgment has been entered to be effected, then there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate. 2. Therefore, the Court strongly holds that the Law firm of Messrs. Githiomi Mungai Advocates LLP has properly invoked the procedure under the provision of Order 9 Rule 9 by seeking leave to come on record post - Judgment. Their representation is regular and valid, subject to the Court granting the prayer for leave before proceeding to consider the substantive issues of contempt and enforcement. ***ISSUE No. b). Whether the Notice of Motion application dated 16th February, 2026 seeking to cite the Defendant/Respondent for contempt of court for wilful disobedience of the Judgment delivered on 4th August, 2025 and the consequential Decree issued on 9th December, 2025 is merited*** 1. Under this sub–title, the main issue here is whether the Notice of Motion application dated 16th February, 2026 seeking to cite the 1st Defendant/Respondent for contempt of court for willful disobedience of the Judgment delivered on 4th August, 2025 and the consequential Decree issued on 9th December, 2025 is merited. I now turn to the issue of contempt. Contempt is any conduct that despises the authority and dignity of the Court. The Black’s Law Dictionary 9th Edition defines Contempt as:- **“The act or state of despising; conduct of being despised. Conduct that defies the authority of a court or legislature, because such conduct interferes with the administration of justice.”** 1. The legal framework on contempt is anchored on the provision of Section 5 of the Judicature Act, Cap. 8. That section confers jurisdiction on superior courts to punish for contempt and uphold the dignity and authority of courts. Contempt of court is essentially defiance of the authority of the court. 2. The provision of Section 29 of the Environment and Land Court Act, No. 19 of 2011 provides as follows:- **“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”** 1. Courts punish contempt of court to uphold the rule of law which is the cornerstone of any democratic state like ours. In the case of ***“Econet Wireless Kenya Limited – Versus - Minister For Information and Communication of Kenya Authority [2005] eKLR”***, the court stated as follows: - ***“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. In the Court of Appeal case of:- ***“Micheal Sistu Mwaura Kamau – Versus - Director of Public Prosecutions & 4 others [2018] eKLR”*** the court held as follows:- ***“It is trite that to commit a person for contempt of court, the court must be satisfied that he has willfully and deliberately disobeyed a court order that he was aware of…secondly, as this Court emphasized in Jihan Freighters Limited – Versus - Hardware & General Stores Limited and in AB & another – Versus - R B [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt.”*** 1. Similarly, in the case of ***“T.N Gadavarman Thiru Mulpad – Versus - Ashok Khot and anor [2005] 5 SCC”***, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows: ***“Disobedience of this Court’s order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court’s orders are to be followed and complied with.”*** 1. Civil contempt proceedings are quasi-criminal proceedings since the consequence thereof may result in deprivation of the liberty of a proven contemnor. Therefore, the standard of proof for contempt is higher than the standard of proof required in ordinary civil cases of the balance of probabilities, although the same is slightly below the standard of beyond reasonable doubt required in criminal cases. To prove contempt of a court order, an applicant ought to show that there exists terms of a court order that are clear and unambiguous; that the respondent was aware of the clear terms of the order; and that the Respondent willfully disobeyed the terms of the order. 2. In the instant case, the Judgment of 4th August, 2025 directed the 1st Defendant/Respondent to vacate the suit property within 120 days. The Decree was issued on 9th December, 2025. Evidence annexed as “DN - 2” shows that the Judgment and Decree were conspicuously posted on the property gate on 10th February, 2026. Despite this, the 1st Defendant has willfully refused to vacate, thereby frustrating the Plaintiff’s right to property under the provision of Article 40 of the Constitution of Kenya, 2010 and undermining the authority of this Court. The 1st Defendant’s conduct amounts to deliberate disobedience, satisfying the threshold for contempt as set out in precedence above. 3. The Court notes that the Plaintiff/Applicant made several attempts to secure compliance in a humane and dignified manner, but the 1st Defendant remained defiant. This persistent refusal demonstrates not inadvertence or misunderstanding, but a conscious and deliberate disregard of lawful orders. 4. The Court finds that the 1st Defendant/Respondent is in wilful disobedience of the Judgment and Decree. The Notice of Motion dated 16th February, 2026 is therefore merited, and the 1st Defendant/Respondent is properly cited for contempt of court. The Court must now consider the appropriate sanction—whether committal to civil jail, fines, or other coercive measures—to enforce compliance and safeguard the dignity of judicial authority. In doing so, the Court is guided by the principle that its orders are not issued in vain and must be respected to uphold the rule of law. ***ISSUE No. c). Whether the Plaintiff/Applicant has demonstrated sufficient grounds to warrant committal of the Defendant/Respondent to civil jail or the imposition of other sanctions as the Court may deem fit.*** 1. Under this sub–title, the main issue here is whether the Plaintiff/Applicant has demonstrated sufficient grounds to warrant committal of the Defendant/Respondent to civil jail or the imposition of other sanctions as the Court may deem fit. However, the given circumstances, the Court note that there various modus of execution particularly well enshrined under the provision of Sections 34, 36, 37 and 38 of the Civil Procedure Act, Cap. 21 and Order 22 of the Civil Procedure Rules, 2010. Certainly, contempt of Court is not one of them. The provision of Order 22 of the Civil Procedure Rules, 2010 deals with execution of decrees. Order 22, Rule 18 (1) and (2) of the Civil Procedure Rules. Sub-rule (1) provides thus:- **“ Where an application for execution is made—** * + - * 1. **more than one year after the date of the decree;** **…** **the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him …** **Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the Judgment - Debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him.”** **Whereas Sub-rule (2) reads as follows:** **“Nothing in sub-rule (1) shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.”** 1. The provision of Section 38 of the Civil Procedure Act, Cap 21 provides:- **“ Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—** **(a) by delivery of any property specifically decreed;** **(b) by attachment and sale, or by sale without attachment, of any property;** **(c) by attachment of debts.”** 1. In ***“Machira T/A Machira & Co Advocates – Versus - East African Standard (No 2) [2002] KLR 63”***, it was held that: ***“The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged…”*** 1. In ***“Khaminwa – Versus - Mulama & 6 Others [2026] KEELC 211 (KLR)”***, the Court reaffirmed that persistent disobedience of eviction orders constitutes contempt and warrants coercive sanctions to uphold judicial authority. 2. The Court notes that the Plaintiff/ Applicant has demonstrated that the Defendant/Respondent was ordered to vacate the suit property within 120 days of the Judgment dated 4th August, 2025. A Decree was issued on 9th December, 2025. The Judgment and Decree were conspicuously posted on the property gate on 10th February, 2026. Despite these measures, the Defendant has wilfully refused to vacate, thereby frustrating execution and undermining the Court’s authority. The Defendant’s conduct is not inadvertent but deliberate, amounting to wilful disobedience. The Plaintiff has therefore satisfied the threshold for contempt and demonstrated sufficient grounds for coercive sanctions. 3. The Court finds that the Plaintiff/Applicant has demonstrated sufficient grounds to warrant committal of the 1st Defendant/Respondent to civil jail. However, mindful of the principle of proportionality, the Court may impose a committal period subject to the 1st Defendant purging the contempt by vacating the property. Alternatively, the Court may impose fines or other sanctions to secure compliance. 4. The overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act. No 19 of 2011 requires that the Court balance enforcement of its authority with fairness. In this case, committal to civil jail is merited, but the 1st Defendant retains the opportunity to purge the contempt by immediate compliance with the eviction order. ***ISSUE No. d). Whether the Plaintiff/Applicant has established sufficient basis for the intervention of the Officer Commanding Station (OCS), Diani Police Station, and/or other police officers to provide security and maintain peace during the execution of the eviction orders.*** 1. Under this sub–title, the main issue here is whether the Plaintiff/Applicant has established sufficient basis for the intervention of the Officer Commanding Station (OCS), Diani Police Station, and/or other police officers to provide security and maintain peace during the execution of the eviction orders. 2. The Court’s authority to enlist police assistance in execution of its orders is grounded in both statute and constitutional principles; Section 3A of the Civil Procedure Act, Cap. 21 preserves the inherent power of the Court to make orders necessary for the ends of justice and to prevent abuse of process. This provision empowers the Court to fashion remedies that ensure its decrees are not rendered illusory. 3. The provision of Article 40 of the Constitution of Kenya, 2010 guarantees the right to property, which must be protected against unlawful occupation or obstruction. The denial of vacant possession despite a valid decree amounts to a violation of this constitutional right. 4. The Plaintiff/ Applicant has demonstrated that the 1st Defendant/Respondent has willfully refused to vacate the suit property despite the Judgment of 4th August, 2025 and Decree of 9th December, 2025. Attempts to secure compliance in a humane and dignified manner have failed, with the Defendant continuing to resist execution. The 1st Defendant’s continued occupation undermines the authority of the Court and risks breach of peace during execution, particularly given the history of defiance and contempt. 5. Given these circumstances, police assistance is not only justified but necessary to ensure that the eviction is carried out peacefully, with dignity, and in accordance with the Court’s orders. Without such intervention, there is a real risk of obstruction, intimidation, or violence, which would render the Court’s decree ineffective and erode public confidence in the judicial process. 6. The Court finds that the Plaintiff/Applicant has established sufficient basis for the intervention of the OCS, Diani Police Station, and/or other police officers to provide security and maintain peace during the execution of the eviction orders. Such intervention is necessary to safeguard the authority of the Court, protect the Plaintiff’s constitutional right to property, and prevent breach of peace. ***ISSUE No. g). Whether the Notice of Motion application dated 18th February, 2026 by the Defendant herein has any merit – on meeting the threshold of being granted temporary injunctive orders and the Stay of Execution of the Judgement and the Decree delivered by this Honourable Court on 4th Day of August, 2025 pending the preferring of an appeal before the Court of Appeal.*** 1. Paradoxically, the issues under this Sub – titles have been expansively deliberated by both parties. From the deliberations, the Plaintiff and the Defendants have had a meeting of mind on the need to preserve the suit property pending the outcome of the intended appeal. 2. For these reasons, therefore, the Court will wish to save on judicial time and not belabour the point. Hence, in all fairness, it is just reasonable and Equitable that the temporary injunctive orders be granted thereof. ***ISSUE No. e). Who will bear the costs of the Notice of Motion applications dated 16th & 18th February, 2026.*** 1. Under this sub–title, the main issue here is who will bear the costs of the Notice of Motion application dated 16th and 18th February, 2026. It is now well established that the issue of Costs is at the discretion of the Court. 2. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 3. I have well stated in previous precedence and most especially in ***“Sagalla Lodge Limited – Versus - Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”***, that: ***“58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.*** ***The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintiff has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.”*** 1. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present matter, the Plaintiff/ Applicant has successfully demonstrated that the 1st Defendant/Respondent willfully disobeyed the Judgment of 4th August, 2025 and the Decree of 9th December, 2025. The 1st Defendant’s conduct necessitated the filing of the present application to enforce compliance. In these circumstances, the 1st Defendant/Respondent is the unsuccessful party. The Plaintiff/Applicant has been compelled to incur costs to enforce a valid judgment, and justice demands that such costs be borne by the party in default. 2. The Court therefore finds that the costs of the Notice of Motion application dated 16th February, 2026 shall be borne by the Defendant/Respondent. This is consistent with the principle that costs follow the event and ensures that the Plaintiff/Applicant is compensated for expenses incurred in enforcing compliance with lawful court orders. 3. **Conclusion and Disposition** 4. In long analysis, the Honourable Court has carefully considered and weighed the conflicting parties’ interests as regards the enforcement of the Judgment delivered on 4th August, 2025 and the consequential Decree issued on 9th December, 2025. 5. Having said that much, there will be need to enforce the Judgment and Decree so as not to render the Court’s orders nugatory. In a nutshell, I proceed to order the following:- 6. **THAT the Notice of Motion application dated 16th February, 2026 be and is hereby partially found to have merit and thus allowed under the stringent terms and conditions with time frames stipulated herein below.** 7. **THAT the Notice of Motion application dated 18th February, 2026 be and is hereby found to have merit and thus allowed under the terms and conditions stipulated herein below.** 8. **THAT leave be and is hereby granted to the Law firm of Messrs. Githiomi Mungai Advocates LLP to come on record for the Plaintiff/Applicant Post - Judgment.** 9. **THAT the Honourable Court declines cite the Defendant/Respondent, M/s. Tabitha Ndungu to be cited for Contempt of Court orders allegedly for willfully disobeying the Judgment delivered on 4th August, 2025 and the Decree issued on 9th December, 2025 for being unsustainable taking that the Applicants never exhausted all the execution remedies available under Section 38 of the Civil Procedure Act nor Orders 22 of the Rules.** 10. **THAT there be issued a Stay of Execution of the Judgment delivered on 4th August, 2025 and the Decree issued on 9th December, 2025 pending the hearing and final determination of Appeal before the Court of Appeal but on fulfilment of the Pre – conditions set out herein.** 11. **THAT the Defendant directed to deposit a sum of Kenya Shillings five Million (Kshs. 5, 000, 000.00/=) in an interest earning Escrow Joint bank account in reputable commercial and financial institution in the names of Messrs. Githiomi Mungai Advocates and Messrs. Tindika & Company Advocates WITHIN THE NEXT (30) DAYS, as security for the due performance of the Decree failure to which the Notice of Motion application dated 18th February, 2026 shall STAND DISMISSED AUTOMATICALLY without having any further recourse to this Honourable Court unless otherwise stated.** 12. **THAT the costs of the Notice of Motion application dated 16th February, 2026 shall be borne by the Defendant/Respondent while each party will bear their own costs onto the Notice of Motion application dated 18th February, 2026.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS ………30TH …..…DAY OF …………JULY..……..2026.** **……………………….** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** * + - * 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Githiomi Advocate for the Plaintiff. 3. Mr. Tindika Advocate for the 1st Defendant. 4. No appearance for the 2nd Defendant and the Intended Interested Party.