https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4939

**+** **** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELCLA NO. EO11 OF 2024** **TIMOTHY KIPKOECH KIPTALA …….……..………..… 1ST APPELLANT** **BENARD KIPKURUI KIPTALA ………………………….. 2ND APPELLANT** **REUBEN KIPYEGO KIPTALA ……………………….….. 3RD APPELLANT** **DANIEL KANDIE CHEMWENO …………..…………….. 4TH APPELLANT** **VERSUS** **CHARLES KIPKEMBOI KISANG ………………….……… RESPONDENT** **RULING** 1. **CHARLES KIPKEMBOI KIPSANG** (the Respondent herein) was the Plaintiff in **ITEN SENIOR PRINCIPAL MAGISTRATE’S COURT ELC CASE NO. 12 OF 2024**. He filed a plaint in the subordinate court against **TIMOTHY KIPKOECH KIPTALA, BENARD KIPKURUI KIPTALA, REUBEN KIPYEGO KIPTALA and DANIEL KANDIE KIPTALA** (the Appellants herein and the Defendants in the subordinate court).The Respondent sought the substantive remedy of a permanent injunction restraining the Appellants jointly and severally, their servants, agents and/or assigns from in any way dealing and/or interfering with the Respondent’s use, occupation, construction building, fencing, ploughing, tilling, planting and/or any act inconsistent with the Respondents right as the legal owner of the land parcel **NO. MOIBEN/CHEBARA/723** measuring 8.5 Ha. (suit land). The basis upon which the Respondent’s claim was anchored is not necessary for purposes of this ruling 2. Simultaneously with the plaint, the Appellant filed a Notice of Motion dated 28th February 2024 seeking an order of temporary injunction restraining the Appellants by themselves, their agents and/or assigns from in any way dealing and/or interfering with the Respondents’ quiet possession, use, occupation, fencing, planting, tilling, ploughing and/or doing any act that is inconsistent with the Respondent’s right as the owner of the suit land. 3. The Motion was opposed. Again for the purpose of this ruling, I shall not delve into the grounds of this Motion or the responses thereto. Suffice it to state that vide a ruling dated 2nd July 2024, the Motion was allowed by **HON. EMILY KIGEN (Principal Magistrate).** 4. That ruling provoked an appeal by the Appellants seeking to set aside the orders by the trial magistrate allowing the Motion and that instead, the same be substituted by an order of status quo. 5. The appeal was canvassed before **WAITHAKA J**. who, vide a Judgment delivered on 26th May 2025, the Judge allowed the appeal as prayed. 6. The Appellants have now approached this court vide their Notice of Motion dated 23rd February 2026 and anchored under the provisions of **Sections 1A, 1B, 3, 3A** and **63(e)** of the Civil Procedure Act, **Order 40 Rule 3** of the Civil Procedure Rules and **Section 29** of the Environment and Land Court Act. They seek the substantive order that: 7. **“Spent** 8. **The Respondent be and is hereby committed to civil jail for a period not exceeding two (2) years or pay a fine of Kenya Shillings Twenty Million (20,000,000) or both for being in contempt of court orders issued on the 26th May, 2025.** 9. **That the costs of this application be provided for.”** 10. The motion is based on the grounds set out therein and is supported by the affidavit of **TIMOTHY KIPKOECH KIPTALA** the 1st Appellant. 11. The gist of the Motion is that on 26th May 2025, this court granted an order of status quo to be maintained with respect to the suit land. However, the Respondent has failed to comply with the orders and on 17th July 2025 he registered a mutation sub-dividing the suit land to create new parcels being **MOIBEN CHEBARA/749** measuring 3.56 Ha, **MOIBEN CHEBARA/750** measuring 2.42Ha and **MOIBEN CHEBARA/751** measuring 2.42 Ha. That the said sub-divisions affect and are contrary to the orders of of status quo that was to be maintained pending the hearing of the main suit at the trial court. That the said order was made in the presence of the parties counsel and the Respondent’s conduct undermines the authority and dignity of the court. It is therefore in the interest of justice that the application be allowed. Annexed to the Motion is the copy of the judgment by **WAITHAKA J**. delivered on 26th May 2025 allowing the appeal as prayed. 12. The motion is opposed and the Respondent filed a replying affidavit dated 25th May 2026 in which he has deponed, inter alia that the same is bad in law, frivolous, vexatious misconceived and otherwise an abuse of the process of this court. He adds that the Judgment delivered on 26th March 2025 did not contain any specific enforceable orders directed at him and which are capable of being disobeyed. Further, no formal order was extracted from the Judgment and served upon him. In any event, the proceedings before this court became moot and academic once the file was returned to the trial court for hearing and determination of the main suit. This court is therefore functus officio and there is no live order capable of forming a basis of contempt proceedings. 13. Further, that the threshold of establishing civil contempt is extremely high and requires proof of clear, unambiguous, extracted and duly served court orders together with wilful disobedience thereof and none of these elements have been proved in this matter. This Motion is therefore an afterthought aimed at harassing the Respondent. 14. This court directed that the Motion be canvassed by way of written submissions. The same have been filed by **MR. MATHAI** instructed by the firm of **MATHAI MAINA & COMPANY ADVOCATES** for the Appellant and by **MR. OMBOTO** instructed by the firm of **ROBA OMBOTO & COMPANY ADVOCATES** for the Respondent. 15. I have considered the Motion, the rival affidavits and the submissions by counsel. 16. As I considered this Motion, it became clear from the pleadings herein that the suit in the subordinate court is alive and still pending determination. I therefore called for the file and confirmed that indeed the matter is coming up for hearing in the trial court on 16th September 2026. 17. Given the above circumstances, I have agonized on whether I should proceed to determine this Motion which seeks to punish the Respondent for contempt of an order allegedly issued by **WAITHAKA J.** on 26th May 2025. I also take note of the fact that the orders of injunction were issued by **HON. EMILY KIGEN (PM**) on 30th September, 2024. When the appeal came up before **WAITHAKA J,** the Judge delivered a Judgment on 26th May allowing the appeal as prayed. She did no more. 18. The orders which gave rise to the appeal and which have precipitated this application to punish the Respondent for contempt commenced in the subordinate court. There is no doubt that the Magistrate’s court has jurisdiction to punish for contempt of its orders. That is clear from **Section 10(3)** of the Magistrates’ court **Act 2015**. It reads: **3: “In any case of Civil Proceedings, the wilful disobedience of any judgment, decree direction order or other process of a court or wilful breach of an undertaking given to a court constitute contempt of court”** 1. The subject of contempt, as per the Motion arose on 17th July 2025 after the Judge had allowed the appeal on 26th May 2025. The injunction orders having been issued by the trial magistrate on 2nd July 2024, the view I have of the matter is that any application for contempt should be litigated in the trial court where the matter is still alive. In doing so, I am guided by the decision in **ENOCK NYAANGA V. JAMES OGENDI & 7 OTHERS 2023 KEHC 3413 KLR**. At paragraphs 21 and 22, the court addressed itself as follows: **21: “Having found that this court will move not step in the event it finds that it has no jurisdiction, I find that I cannot proceed to determine the merits on the contempt proceedings for doing so will usurp the authority of the Magistrate’s Court and further prejudice its determination should a similar application be filed in the said court. Determining the contempt application will also prejudice the parties’ right of appeal should they find it necessary to appeal against the Magistrate’s decision on the contempt application.”** **22: “Needless to say, the case before the lower court is still pending and I find that any contempt regarding the alleged disobedience of the lower court orders should have been placed before the lower court in the first instance in which case, this court’s jurisdiction over the issue of contempt can only be invoked on appeal.”** 1. This court (**WAITHAKA J)** having determined this appeal, divested itself of any control over the proceedings in the subordinate court which are still alive. 2. I also seek reliance on the doctrine of avoidance which is primarily viewed by the courts from the position that a dispute which can be determined in another forum should be determined in that forum. 3. The upshot of all the above is that having considered the Notice of Motion herein, I issue the following dispositive orders: 4. **The Motion dated 23rd February 2026 is struck out with no orders as to costs.** 5. **The Appellants are at liberty to file their Motion in the trial court.** **BOAZ N. OLAO** **JUDGE** **30TH JULY 2026** **Ruling dated, signed and delivered on this 30th day of July, 2026 by way of electronic mail with notice to the parties.** **BOAZ N. OLAO** **JUDGE** **30TH JULY 2026**