https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4313

Mwachai v Waziri (Environment and Land Case 51 of 2013) [2026] KEELC 4313 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4313 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 51 of 2013 A Ombwayo, J July 9, 2026 Between Joyce Mkaluma Mwachai Applicant and Josephat Odaro Waziri Respondent Ruling 1.Joyce Mkaluma Mwachai (hereinafter referred to as the applicant) has come to this court seeking orders against Josephat Odaro Waziri (hereinafter referred to as the respondent) thus that the plaintiff be given unconditional access to the defendants premises and take appropriate action, as well as give appropriate guidance and direction on account of such directorship and that summons requiring attendance do issue to Josephat Odaro Wazir to attend court on a date to be determined by court to show cause why they should not be punished for contempt of court and/or orders issued herein on 3/3/2015. 2.Moreover that Josephat Odaro Wazir be cited for contempt of court and/or lawful court orders for willful and/or deliberate and/or other failure and/or defiance and/or refusal and/or neglect to comply with and/or disobedience of the orders of court issued herein on 3/3/2015. Furthermore that the honorable court do find, hold and declare that Josephat Odaro Wazir is jointly and/or severally in contempt and/or performed Acts and/or omissions in contempt of the orders of court issued herein on 3/3/2015. 3.Lastly that Josephat Odaro Waziri be sentenced to imprisonment/committed to civil jail for a term of six (6) months and/or a penalty be imposed upon him, and/or for willful and/or deliberate and/or other failure and/or contravention and/or defiance and/or disobedience of orders of court issued on 3/3/2015 and that costs of this motion and related proceedings be borne by the defendant. 4.The application is supported by the annexed affidavit of Joyce Mkaluma Mwachai, the 5.Applicant, sworn on 14TH February 2025. The Applicant contends that despite orders being issued to the effect that the Respondent vacates the portion of land known as Plot Number 106/1/MN, located in Milimani Kongowea, Mombasa County, he has failed to vacate, denied the Applicant peaceful stay and access to the suit portion, thereby failing to comply with the court orders issued on 19/2/2015. 6.The Respondent was served with the application on 3rd November 2025 and the affidavit of service filed. However as at the time of writing this ruling, no response had been filed by the respondent. Analysis And Determination 7.The issue for determination is whether the Respondent is in contempt of the orders issued by the court. It is clear that this application is anchored on orders that were issued by this very court and are ascertainable from the proceedings. Indeed, orders for the demolition of the Defendant and their agents, tenants, servants, or workmen from all that premises were issued by the court on 3rd March 2015. 8.The application before the court seeks to have the Respondent cited for contempt of this court’s order issued on 3rd March 2015 and to have him committed to civil jail and/or fined as the court may deem fit. It also seeks that attendance do issue to the Respondent on a date determined by the court to show cause why he should not be punished for contempt of court. 9.Contempt of court is conduct or action that defies or disrespects the authority of the court. Black’s Law Dictionary, 9th Edition, defines contempt as:“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice.” 10.Contempt of court proceedings are criminal in nature; therefore, proof of a case against a contemnor is higher than that on a balance of probabilities. This is because the liberty of the subject is at stake. The Applicant is therefore required to prove that the disobedience of the court order was wilful and deliberate if she is to succeed. In light of the gravity of the consequences that ordinarily flow from contempt proceedings, it is only proper that the order be served so that the person cited for contempt is aware of that order. We cannot merely rely on assertions that the Respondent was indeed served with the orders and was aware of the same without proof of service. 11.The elements of civil contempt were succinctly set out in Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] KEHC 9233 (KLR). In that decision, Mativo J. (as he then was) stated that: It is an established principle of law that, in order to succeed in civil contempt proceedings, the applicant must prove: (i) the terms of the court order; (ii) the Respondent's knowledge of those terms; and (iii) the Respondent's failure to comply with the terms of the order. 12.The foregoing principles guide the Court in determining whether a case for civil contempthas been established.In Peter K. Yego & 3 Others V Pauline Nekesa Kode [2009] KEHC 3312 (KLR), the 13.court stated that: As contempt of court is criminal, it must be proved that one has actually disobeyed the court order before one is cited for contempt. One of the most important elements to be proved in such a charge is service of the order upon the alleged contemnor. In the case of Gatharia K. Mutikika vs Baharini Farm Ltd (1985) KLR 227, the court explained the standard of proof for civil contempt, and held as follows;-“In, Re Breamblevale Ltd [1969] 3 All ER 1062, Lord Denning MR. (as he then was), at page 1063, had this to say,‘A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time– honoured phrase, it must be proved beyond reasonable doubt’.With the greatest possible respect to that eminent English judge, that proof is much too high for an offence “of a criminal character” and, ipso facto, not a criminal offence properly so defined. We agree with Mr. Khaminwa’s submissions in this respect. In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offence which can be said to be quasi – criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved ‘with such strictness of proof ... as is consistent with the gravity of the charge’.” 14.In the current application, the Applicant has not sufficiently demonstrated to the court that the Respondent deliberately disobeyed the court orders. She has not demonstrated that service upon the Respondent was actualized and that he was fully aware of the orders issued by the court and chose to disobey them. No affidavit of service has been annexed to show that service was effected upon the Respondent. Contempt of court proceedings are a serious undertaking in that, upon conviction, the alleged contemnor stands to lose his liberty. 15.It is not lost on this court that the instant application was properly served upon the Respondent, who failed to respond to the same. However, the Applicant has failed to establish the essential ingredient for contempt. 16.In the premises, the Notice of Motion dated 14th February 2025 partially succeeds and is allowed in terms of paragraph 2 and 3 of the application for summons to be issued to the Respondent to attend court and show cause why he should not be punished for contempt of court and orders issued on 3rd March 2015. Mention on 24th September 2026. SIGNED BY/FOR:The Judiciary of KenyaDoc IDENTITY: 136337281966511552725286814 Tracking Number:OOHN872026