https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3215

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KAPSABET** **ELCLC CASE NO. E024 OF 2025** **BENARD KIBOR KITUR……………………..…..PLAINTIFF/RESPONDENT** **-VERSUS-** **HENRY MARITIM KOECH……………………DEFENDANT/APPLICANT** **RULING** 1. This ruling pertains to twinned applications namely; 2. A Notice of Motion dated 4th November 2025 by the defendant/applicant through Wangila and Wangila Advocates (The first application herein) for orders thus; 3. Spent 4. Spent 5. This Honourable court be pleased to set aside, vacate and discharge the ex parte orders issued on 21st October, 2025 restraining the Defendant/Applicant by themselves, their servants, contractors or agents from constructing, pulling down the fence, constructing thereon, transferring, alienating trespassing onto, subdividing, taking possession or in any way interfering with the Plaintiff’s parcel of land known as **NANDI COUNTY L.R 82527** (The suit land) measuring approximately 50 acres. 6. This Honourable court be pleased to strike out and/or expunge from the record of the false affidavit of service purporting that the defendant/applicant was duly served with the Plaintiff’s Notice of motion dated 29th September, 2025 together with any consequential proceedings arising therefrom. 7. The Honourable court be pleased to strike out the Plaintiff’s notice of motion dated 29th September, 2025 for being incompetent, irregular and obtained through mispresentation and concealment of material facts. 8. The costs of this application be provided for. 9. A Notice of Motion dated 20th November 2025 by the plaintiff/applicant through Seneti and Oburu Associates Advocates (The second application herein) seeking the orders infra; 10. Spent 11. That the Defendant/Respondent namely **Henry Maritim Koech** do show cause why he should not be detained in civil jail for a period of six months or more for blatantly disobeying the court orders issued on 21st October, 2025 pending the hearing and determination of the instant application inter-partes. 12. That the Defendant/Respondent namely **Henry Maritim Koech** do be detained in civil jail for a period of six months or more for blatantly disobeying the court orders issued on the 21st October 2025 pending the hearing and determination of the main suit. 13. That the O.C.S, Songhor Police Station to ensure the compliance of any orders issued herein. 14. That, Respondent to pay costs of this application. 15. The foundational basis of the first application are the grounds on the face of the same as well as the applicant/defendant’s affidavit of twenty-one paragraphs in entirety. Briefly, the defendant asserts that the plaintiff’s application dated 29th September 2025 was not certified as urgent and the plaintiff irregularly obtained ex-parte orders on 21st October 2025. That plaintiff and or his counsel filed a false affidavit of service as the application was not served on the defendant. That if the said orders are not vacated, the integrity of these proceedings will be compromised. That the application has been commenced in good faith, without undue delay and in the interest of justice and equity. 16. The second application is premised upon the ten grounds set out on its face alongside the plaintiff’s affidavit of thirteen paragraphs together with the documents marked ‘BBK1’ to ‘BBK5’ including the order of 21st October 2025 and affidavits of service annexed thereto. The plaintiff’s lamentation is that the orders of 21st October 2025 were duly served upon the defendant and the OCS Songhor Police Station on 22nd October 2025 and 28th October 2025 respectively. That on 18th November 2025, the defendants by themselves, their servants, contractors or agents with impunity pulled down the fence on the suit parcel and unlawfully gained access, destroyed the existing fence and burned plantation inside the suit land thus, the orders sought in the 2nd application be granted to protect the integrity of this court. 17. In a 23-paragraphed replying affidavit sworn on 29th March 2025 by the plaintiff, the first application is opposed. He averred, inter alia, that the defendant mounted the application after inordinate and unreasonable delay without any explanation thus, the defendant is guilty of indolence in equity. Also, that the defendant is guilty of material non-disclosure, the application is an after-thought and an attempt to hoodwink the court to reopen the application dated 29th September 2025 which was allowed by the court. That on a balance of convenience and in the interest of justice, the court should not set aside the existing orders of 21st October 2025. That the application is mis-conceived, inept, ambiguous, full of falsehoods, made in bad faith, frivolous, vexatious, lacks merit, unjust an abuse of judicial precious time hence, the same ought to be dismissed with costs. 18. By the replying affidavit of eleven paragraphs sworn on 16th **December** 2025, the defendant opposed the second application. He contends in part that the Plaintiff's application is an attempt to create the false impression of contempt where none exists, and seeks to interfere with the Defendant's lawful rights over his property. That the Plaintiff s application, if granted, would result in irreparable prejudice to me as the Defendant/Applicant, including harassment, disruption of lawful enjoyment of property, and reputational harm. 19. In the submissions dated 16th December 2025 in support of the first application, learned counsel for the defendant referred to the application and identified five issues for determination including whether the ex parte orders of 22nd October 2025 were lawfully and properly granted. Counsel submitted that the orders were irregularly obtained thus, the application is frivolous, vexatious and an abuse of the court process. To buttress the submissions, reliance was made on **Kenya Commercial Finance Company Ltd –vs- Afraha Education Society (2001) EA 86** that injunction cannot be granted where damages would be adequate remedy and **Njagi Wanjeru & Company Advocates -vs- County Secretary Nairobi City County & 2 others {2024} KEHC 3918 (KLR)** on the twin rules of natural justice. 20. By the plaintiff’s submissions dated 3rd January 2026 in respect of the first application, reference was made to the application, the replying affidavit and a further affidavit in opposition to the application. Counsel for the plaintiff submitted that the application is want of disclosure of facts, not made in good faith, guilty of delays, evade and constitutes an obstruction of justice. Counsel urged the court to dismiss the application not to defeat justice and preserve the subject matter of the suit. To fortify the submissions, counsel cited the case of **Macfoy vs United Africa Co. Ltd (1963) ALL ER 1169 and Shah –vs Mbogo (1960) EA 116,** among other authoritative pronouncements. 21. Further, learned counsel for the defendant filed submissions dated 16th December 2025 as regards the second application and stated that the plaintiff has failed to establish a prima facie case and to grant the orders sought in the 2nd application would result in irreparable harm and disrupt the rights of the defendant. It was submitted that the second application is riddled with further agenda of intimidation and false allegations. Reliance was made on, inter, alia, **Kenya Commercial case (supra) and Giella –vs- Cassman Brown & Company Ltd(1973) EA 338**, to reinforce the submissions. 22. Having duly considered the dual applications, the responses and the rival submissions inclusive of case law cited therein, the duty of this court is to determine whether the two applications are meritorious. 23. By the first application, the defendant is seeking to set aside this Honourable court’s orders of 21st October 2025 which state as follows; 24. ***‘****That an order of temporary injunction to issue restraining the defendant/respondent by themselves, their servant, contractor or agents from constructing, pulling down the fence, constructing thereon, transferring, alienating, trespassing into, subdividing, taking possession or in any way interfering with the Plaintiffs/Applicants parcel of land known as* ***Nandi County I.R. 82527*** *measuring approximately* ***50 acres*** *pending the hearing and determination of this suit.* 25. *That an order of temporary injunction to issue to restrain the defendant/respondent or his agents from leasing, charging, selling, transferring to third parties and or his agents from leasing, charging, selling, transferring to third parties and/or changing/altering in terms of the agreement/contract dated 28/8/2025 and/or acting in any way detrimental to the applicant use, occupation or possession of all the parcel of land referenced as* ***No. I.R. 82527*** *within Nandi County.* 26. *That* ***O.C.S. Songhor*** *police station to ensure that these orders are complied with.’* 27. The court granted the orders pursuant to the plaintiff’s application dated 29th September 2025 generated under **Article 40 of the Constitution of Kenya 2010 and sections 1A, 1B and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya** for principal order of temporary injunction against the defendant over the suit land. The application was duly served as confirmed by the affidavit of service of five paragraphs sworn 16th October 2025 by Ben Cheruiyot, a licenced process server S/No. CPS 0973 Reference Number 1016 issued as disclosed as noted on 21st October 2025 when the application was allowed by this court. 28. The court is conscious of lack of jurisdiction, procedural irregularity and change of circumstances, among other guiding principles, for setting aside interlocutory orders as held in **Shah case** (supra) and **Gatirau Peter Munya –vs- Dickson Menda Kithinji & 2 others (2014) eKLR.** I am of the considered view that the interim preservation orders of 21stOctober 2025, are regular and in consonant with **Article 40, sections 1A, 1B, 3A, Shah and Munya cases** (all supra) and **section 13 (7) of the Environment and Land Court Act, 2015 (2011)**. The parties have to maintain the orders thus, the first application is rendered unsustainable. 29. Pertaining to main orders sought in the second application, this court’s authority over contempt of court which is **C**ontempt of court is quasi-criminal nature, is anchored upon **section 5 (1) of the Judicature Act Chapter 8 of the Laws of Kenya** as read with **section 29 of the Environment and Land Court Act 2015 (2011).** This is a rare but powerful remedy where it must be established that the respondent had knowledge of the contents of the order of court and deliberately disobeyed the same as enunciated in the landmark English Court of Appeal decision in the case of **Hadkinson –vs- Hadkinson {1952} P. 285; {1952} 2 All ER 567** where it was observed; *‘.........it is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged.........’* 1. Clearly, the second application pertains to this Honourable court’s orders made on 21st October 2025 which are in plain English language in line with **Article 7 (2) of the** **Constitution of Kenya 2010** to the effect that English is an official language in Kenya and section **23 of the Environment and Land Court Act 2015 (2011)** that it is the official language of this court. 2. It is notable that in normal scheme of things, personal service in matters of contempt is a requirement. However, knowledge supersedes personal service. Therefore, 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; see also **Basil Criticos vs Attorney General & 8 OTHERS 920120 KLR and Teachers Service Commission –vs- Kenya National Union of Teachers & 2 others (2013) eKLR.** 3. In the case of **Jacinta Njeru Kaitha vs David K. Kanyiri {2015} KECA 647 (KLR),** it was held that in a contempt of court case, the complainant must provide strict, unquestionable proof that the respondent was personally served with both the court order and the required penal notice in a timely fashion. That the penal notice must be prominently displayed to warn the alleged contemnor of the consequences of disobedience. 4. Similarly, in the case of **Edward Njuguna Kangethe -vs- Joel Kiema Mutinda & another (2014) eKLR** which I endorse, Havelock J stated; *’……………In Highlands Plant Ltd -vs- Alice Wairimu Mwangi (2005) eKLR and Monica Waithera Munyua-vs-Joshua Sorora & 3 others (2005) eKLR, the court held that personal service of the court order and penal notice is mandatory. In both instances, the applications for committal to civil jail were dismissed for failing to comply and adhere to the provisions of section 5 of the Judicature Act, as read together with Order 39 Rule2 of the Civil Procedure Rules. These provisions are unequivocal and mandatory, and any applicant who wishes to bring contempt proceedings must adhere and comply with such set down procedure.’* 1. Copies of affidavits of service (BKK2) and (BKK3) at paragraphs 3 and 4 respectively of the supporting affidavit sworn on 20th November 2025 in respect of the second application allege service of the orders upon the respondent. Indeed, the affidavits (BKK2 and BKK2) were not duly filed as shown in the Court Tracking System. It crustal clear that the plaintiff’s counsel did not file any such documents or at all between 23rd October 2025 at 10.51.26 hrs and on 24th November 2025 at 16.17.19 hrs when the affidavit of service sworn on 16th October 2025 in respect of an application dated 29th September 2025 and the second application respectively, were filed in this suit. So, the defendant had no knowledge of the orders of 21st October 2025. 2. Moreover, there is no penal notice prominently displayed or present on the face of the court orders allegedly served on the contemnor to ensure that he is fully aware of the consequences of disobedience of the orders as contempt is a quasi-criminal matter. Lack of personal service of the court orders and non-display of prominent penal notice which are mandatory, render the application premature or fatal in the obtaining circumstances. 3. In sum, contempt of court comprises of deliberate breach of clear, unambiguous lawful ordersby the respondent who had knowledge or properly notified of the existence of the orders. In the second application, the orders did notcontain a penal notice on the face of it and were not properly served upon the respondent to convey the respondent’s knowledge or notice of the same. Therefore, the alleged breach by defendant was not deliberate hence, the second application has not satisfied all the requisite elements for contempt of court. 4. A fortiori, both the first and second applications lack merit and are hereby dismissed with costs in the cause. 5. It is so ordered, **Dated** and **Delivered** at **Kapsabet** this **20th** day of **May 2026**. **HON. G. M .A ONG’ONDO** **JUDGE** **In the presence of;** 1. M/s Mukaburu instructed by Wangila learned counsel for the defendant/applicant 2. Walter, court assistant