https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5221

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E231 OF 2024** **MATHEW NDAU KIAMBATI - PLAINTIFF/APPLICANT** **VS** **EMBAKASI RANCHING CO. LIMITED - DEFENDANT/RESPONDENT** **RULING** 1. Vide the Motion dated 17/12/2025, the applicant moved the court and sought the following orders; 1. The court to issue orders compelling the Directors of the Defendant/respondent to appear in court and show cause why they should not be punished for contempt of the court orders issued on 13/3/25. 2. The court to issue orders detaining the directors of the defendant/respondent for a term of not less than six months for blatantly disobeying the court's orders on 13/3/25. 3. The court be pleased to deny the defendant/respondent audience in this matter until they purge the contempt of court committed herein. 4. The costs of the application 2. The application is based on the grounds annexed thereto and the supporting affidavit of the applicant, sworn on 17/12/25. The deponent averred that the court's judgment was delivered on 13/3/25 in favour of the plaintiff against the defendant, under which the defendant was ordered to show the actual physical location of the four plots, namely MA 15, MA156, MA 157 and MA 158, and to grant the applicant vacant possession of those plots. In addition, the defendant was ordered to facilitate the issuance of the titles of those plots to the plaintiff. 3. It was further averred that the judgment was served upon the defendant on 1/7/2025, and despite service, the defendant elected to disobey, ignore, and decline to comply with the orders. The defendant's continued disobedience of the court orders has denied the plaintiff his constitutional right to own property under Article 40 of the Constitution of Kenya. The action amounts to contempt of the court orders. 4. The applicant seeks the court's orders to compel the defendant's compliance with the court's orders issued on 13/3/25. 5. The application is not opposed. 6. The applicant filed written submissions which I have read and considered. 7. The key issue is whether the application is merited. 8. Blacks Law dictionary 10th edition defines contempt as Black’s Law Dictionary, 9th Edition at page 360 defines contempt as follows; “Contempt is a disregard of, disobedience to, the rules, or Orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behaviour or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.” 1. Section 29 of the ELCA provides that 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. 2. Section 63( C ) of the Civil Procedure Act provides as follows;- “In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed— (a) …………… (b) ………………. (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.” 9. Order 40, rule 3 of the Civil Procedure Rules sets out the consequences of contempt, including, in the event of disobedience or breach of any terms of a Court Order, an order for the property of the person guilty of such disobedience or breach to be attached, and the Court may also order such person to be detained in prison for a term not exceeding 6 months. This shows that the punishment for contempt is not light. Beyond the attachment of the property of the guilty contemnor, the contemnor's liberty is also at stake. 1. The standard for proving contempt of court was aptly discussed in the case of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, which held that contempt of court is in the nature of criminal proceedings and, therefore, the burden of proof is higher than the balance of probabilities. This is so because the liberty of the alleged contemnor is usually at stake, and the applicant must prove willful and deliberate disobedience of the court order to succeed. 2. In the case of Republic v Attorney General & another Ex parte Mike Maina Kamau [2020] eKLR, the court, citing with approval the South African High Court case of Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division, Case No. 364 of 2005, outlined the ingredients for proving contempt of court, namely that an applicant for contempt of court should prove that the terms of the order were clear and unambiguous and binding on the defendant; that the defendant had knowledge or proper notice of the order; that he acted in breach of the terms of the order; and that his conduct was deliberate. 3. In order to succeed in civil contempt proceedings, the Applicant is duty bound to prove the following 4 elements; - 4. the terms of the Order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant; 5. the Defendant had knowledge of or proper notice of the terms of the Order; 6. the Defendant has acted in breach of the terms of the Order; and 7. the Defendant’s conduct was deliberate. 8. In this case, it is undeniable that the court heard and determined the suit filed by the Plaintiff and delivered a judgement in the following terms. 1. An order be and is hereby issued compelling the defendant by itself, agents, servants, employees or otherwise howsoever to forthwith proceed and show to the Plaintiff the actual physical ground position of the four plots known as Plots Number MA 155, MA 156, MA 157 and MA 158 and grant to the Plaintiff vacant possession of the same. 2. The Defendant be and is hereby ordered to forthwith process documents to facilitate the issuance of title to the Plaintiff with respect to the subject plots Nos. MA 155, MA 156, MA 157 and MA 158. 3. No orders as to costs. 9. Although the judgment was delivered in the absence of the Defendant, the judgment, the extracted decree, and the notice of entry of judgment dated 13/3/25 were served upon the Defendant/respondent and acknowledged on 17/7/26. The respondent has therefore been aware of the judgment and has taken no steps to comply, thereby wilfully disobeying the orders of the court. 10. This court has no alternative but to hold the directors of the defendant in contempt of this Honourable Court's orders dated 13/3/25. 11. The application is therefore allowed as prayed. 12. The directors of the defendant company are therefore ordered to purge the contempt within forty-five days [45]; in default, they shall attend court for mitigation and sentencing. 13. I make no order as to costs. 20. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr Kamande for the Plaintiff 2. N/A for the Defendant 3. CA- Mr Amos