https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10778

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM NO. 290 OF 2018** MAYANA CAPITAL LIMITED……………...……..PLAINTIFF/RESPONDENT -VERSUS- SHIRLEY NAILANTEI LENKOINA...…………1ST DEFENDANT/APPLICANT NAOMI TORIS LENKOINA……...…………………………....2ND DEFENDANT -AND- SAMUEL WAMAE MWANGI…………….………………………….OBJECTOR -AND- MARTIN MWANIKI T/A ANFIELD AUCTIONEERS…………1ST INTERESTED PARTY/RESPONDENT SARAH WANGU MUTHEE………..2ND INTERESTED PARTY/RESPONDENT **RULING** 1. The 1st defendant/applicant filed a Notice of Motion application dated 28th February 2025 pursuant to the provisions of Sections 3, 4(1)(a), 5(b), 7, 27(b), 28 & 29 of the Contempt of Court Act, Section 63(c) & (e) and 84(2) of the Civil Procedure Act, Article 159 of the Constitution of Kenya, 2010 and all other enabling provisions of the law. 2. The 1st defendant prays for orders for Summons to be issued compelling the plaintiff’s Director and the interested party to appear before the Court and show cause why they should not be cited for contempt. The 1st defendant also prays for a finding of contempt against the plaintiff and the 1st interested party for disobeying orders and directions issued by this Court vide a Ruling dated 12th April 2024, and upon such finding, leave be granted for committal to civil jail of Sarah Wangu Muthee and Martin Mwaniki T/A Anfield Auctioneers for a term deemed appropriate by the Court until they purge the contempt. In the alternative or in addition to the committal, the 1st defendant urges this Court to impose a fine of Kshs.200,000.00 against each contemnor. The 1st defendant also seeks an order compelling the plaintiff to produce an updated statement of account reflecting the sum of Kshs.200,309.00 paid through its agent on 18th October 2024. 3. The application is premised on the grounds on the face of the Summons, and it is supported by an affidavit sworn on 28th February 2025 by Ms Shirley Nailantei Lenkoina, the 1st defendant herein. Ms Lenkoina averred that she fully settled the decretal sum of Kshs.4,000,000/= as at 20th November 2024. She asserted that upon full payment, the 1st interested party had no lawful basis to continue detaining the objector’s motor vehicle registration number KCB 264L. She averred that the plaintiff has willfully disregarded Court Orders by failing to acknowledge a payment of Kshs.200,309.00 made on 18th October 2024 through its appointed agent and is instead alleging an outstanding balance of Kshs.160,590.00, which discrepancy arises from failure to account for the said payment. She maintained that the plaintiff, its Director, and the 1st interested party are in contempt of Court, particularly in light of the Court’s Ruling dated 12th April 2024 directing that Auctioneer’s fees be subjected to taxation. 4. Ms Lenkoina explained that on 18th October 2024, she made payments of Kshs.630,000.00 via RTGS and Kshs.200,309.00 via M-Pesa strictly towards payment of the decretal sum, and her Advocates duly communicated this to the respondents. She stated that she subsequently cleared the balance of Kshs.956,777.00 on 20th November 2024, thereby fully settling the decretal sum, yet the motor vehicle continues to be unlawfully detained. She asserted her right of redemption and contended that the continued detention of the said vehicle is unjustified, more so, as disputed Auctioneer’s fees ought to be taxed in accordance with Court Orders and cannot form a basis for retention. 5. In opposition to the application herein, the plaintiff and the 2nd interested party filed a replying affidavit sworn on 1st October 2025 by Ms Sarah Wangu Muthee, the 2nd interested party and a Director of the plaintiff company. Ms Muthee denied all allegations of contempt of Court and stated that the subject motor vehicle, registration number KCB 264L, was released to the Objector on 2nd July 2025 upon confirmation by the Auctioneers, following full payment and reconciliation of the outstanding amounts. She averred that the instant application has been overtaken by events, as the primary relief sought, namely release of the motor vehicle, has already been effected. She maintained that neither her nor the plaintiff acted in defiance of any Court Orders, since the subject vehicle had remained in custody pursuant to a subsisting Order of status quo, which was duly complied with pending further directions of the Court. 6. Ms Muthee asserted that no specific order had been issued directing immediate release of the vehicle, therefore no contempt can arise. In addition, she deposed that the Auctioneer’s bill of costs had been duly filed for taxation in accordance with the Court’s Ruling of 12th April 2024 and that the continued retention of the vehicle prior to its release was lawful, pending resolution of the fees issue. She disputed the relevance of the alleged Kshs.200,309.00 and stated that it relates to accounting matters that have since been clarified between the parties. She contended that the 1st defendant is aware that the decretal sum and related obligations have been substantially settled and that they are already in possession of the motor vehicle, rendering the instant application a waste of judicial time. Ms Muthee asserted that the instant application was brought in bad faith to harass the respondents and scandalize the Court process, and reiterated that no act of contempt has been committed. 7. In a rejoinder, the 1st defendant filed a supplementary affidavit sworn on 30th October 2025 by Ms Shirley Nailantei Lenkoina, the 1st defendant herein. Ms Lenkoina deposed that the assertion that the application herein is spent following release of the suit motor vehicle is false and intended to mislead the Court. She contended that the release of the vehicle was not done in voluntary compliance with the Court’s Ruling but was compelled after continued frustration of the 1st defendant, including pressure to pay the alleged balance of Kshs.160,590.00. She maintained that the respondents have persistently refused to acknowledge a payment of Kshs.200,309.00 and have failed to provide an updated statement of account reflecting the same. 8. Ms Lenkoina asserted that the 1st interested party has not adequately responded to the application herein and that there was a deliberate attempt to impose unlawful storage fees. She averred that the respondents remain in contempt of Court, particularly for failing to comply with the Court’s Ruling dated 12th April 2024 requiring Auctioneers’ fees to be taxed, thus they cannot claim absence of express orders. She also faulted the continued failure to release the suit motor vehicle and to provide a proper reconciliation of accounts as directed. She asserted that the respondents’ conduct amounts to willful disobedience of Court Orders and urged this Court to find them in contempt of Court and grant the orders sought in the instant application. 9. The application herein was canvassed by way of written submissions. The 1st defendant’s submissions were filed by the law firm of EALP Advocates LLP on 1st April 2025, whereas the plaintiff’s submissions were filed on 21st November 2025 by the law firm of Tito & Associates Advocates. 10. Mr. Mwangi Munga, learned Counsel for the 1st defendant submitted that the respondents are in contempt of Court for refusing to release the motor vehicle in issue, despite compliance with the decree and for continuing to rely on disputed Auctioneer’s fees contrary to the Court’s directions. He defined contempt of Court by reference to the **Black’s Law Dictionary 9th Edition,** as conduct that defies or disrespects the authority of a Court and the decision by the Court in the case of **Kioni & 3 others v National Disciplinary Committee of the Jubilee Party & 2 others** [2024] KEHC 11409 (KLR). Counsel relied on the case of **Samuel M. N. Mweru & Others v National Land Commission & 2 others** [2020] KEHC 9233 (KLR) and submitted that the respondents were fully aware of the Court’s Ruling of 12th April 2024, yet they deliberately failed to comply by retaining the motor vehicle in issue, based on fees that was expressly directed to be taxed. 11. Mr. Munga further relied on the provisions of Section 5(1) of the Judicature Act and submitted that the High Court has jurisdiction to punish for contempt of Court to uphold its authority and dignity. He cited the case of **Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui** [2021]KEHC5692 (KLR),for the principle that contempt jurisdiction exists to ensure compliance with Court orders, uphold judicial authority and preserve public confidence in the administration of justice. Counsel contended that contempt of Court serves both private enforcement and public interest in maintaining the effectiveness of the judicial system. He asserted that the respondents’ continued detention of the suit motor vehicle based on disputed Auctioneer’s fees, despite full payment of the decretal sum and a clear Court Order directing taxation of fees, amounts to wilful disobedience of Court Orders. 12. Mr. Munga argued that such conduct undermines the authority of the Court, the rule of law, and public confidence in the judiciary as protected under Article 159(1) of the Constitution of Kenya, 2010. He urged this Court to find that the respondents had knowledge of the Order, failed to comply with it, acted in bad faith and are guilty of contempt. He prayed for this Court to grant the reliefs sought to uphold the dignity and authority of the Court. 13. Mr. Ogendo, learned Counsel for the plaintiff submitted that the instant application for contempt of Court is unnecessary, unwarranted, and lacks legal foundation, as the Court’s Ruling dated 12th April 2024 only directed that the disputed Auctioneer’s fees be subjected to taxation and did not impose any specific obligation capable of being violated to ground contempt proceedings. He argued that the alleged contempt of Court does not relate to any clear or binding term of the Court’s Order and therefore falls outside its scope. Counsel noted that the Auctioneers have already filed their bill of costs dated 17th March 2025 in compliance with the Court’s directions, reinforcing that the taxation process is ongoing and no breach has occurred. 14. Mr. Ogendo also relied on the definition of contempt in **Black’s Law Dictionary** **9th Edition** and the case of **Living Waters E.A.P.C ((suing thro’ the Registered Officials Rev. Andrew Nyaga, Fredrick Nteere & Cornelius Mworia as Chairman, Secretary & Treasurer respectively)) v East Africa Pentecostal Churches ((sued thro’ its Registered Trustees, Rev. Justus Kinoti Ringera, Charles Lewa, Sospeter Njeru & Andrew Kinyamu))** [2022] KEELC13649 (KLR), which set out the four essential elements of civil contempt. Counsel contended that these elements have not been satisfied, as there is no clear breach of any enforceable Order by the plaintiff. 15. Counsel referred to the case of **Mutikika v Baharini Farm Limited** [1985] KLR 227, and stated that because contempt proceedings may affect liberty, the standard of proof is higher than on a balance of probabilities, requiring evidence of deliberate and wilful disobedience, which has not been established in this case. Mr. Ogendo maintained that the instant application misconstrues the scope of the Court’s Orders and seeks to penalize conduct not prohibited by the Ruling on taxation, therefore the allegations of contempt are baseless and unsustainable. **ANALYSIS AND DETERMINATION.** 1. I have considered the application herein, the grounds on the face of it and the affidavits filed in support thereof. I have also read the replying affidavit by the plaintiff and the written submissions by Counsel for the parties. The issues that arise for determination are – 2. **Whether the respondents are in contempt of Court Orders made on 12th April 2024; and** 3. **Whether the 1st defendant is entitled to the reliefs sought in the application herein.** **Whether the respondents are in contempt of Court Orders made on 12th April 2024.** 1. The jurisdiction granted to Courts in contempt of Court proceedings is for purposes of upholding the authority, dignity, and effectiveness of judicial orders. Courts derive their jurisdiction to punish for contempt of Court from Section 5 of the Judicature Act, which states that – 2. ***The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.*** 3. ***An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.*** 4. The import of the aforesaid provisions were considered by the Court of Appeal in the case of **Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11** **others** [2014] KECA 840 (KLR), as hereunder - **“…the English law on committal for contempt of court under Rule 81.4 of the English Civil Procedure Rules, which deals with breach of judgment, order or undertakings, was applied by virtue of section 5(1) of the Judicature Act which provided that:** ***(1). The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts”.*** 1. It is not in contest that this Court in a Ruling delivered on 12th April 2024 directed that disputed Auctioneer’s fees be subjected to taxation. This Court is of the considered view that in order to determine whether the respondents are in contempt of the Court Orders made on 12th April 2024, it has to ascertain whether the said Order imposed a clear and positive obligation that has been disobeyed, so as to sustain a finding of contempt. 2. The 1st defendant contended that despite full settlement of the decretal sum, the respondents unlawfully retained the suit motor vehicle and failed to comply with the order requiring taxation of Auctioneer’s fees. She further averred that the continued detention of the suit motor vehicle was used as leverage to compel payment of disputed sums, including alleged storage fees, thereby amounting to wilful disobedience. The respondents on the other hand maintained that there was no express order directing immediate release of the suit motor vehicle and that its custody was maintained pursuant to a subsisting order of *status quo* pending resolution of the dispute on costs. They further stated that the Auctioneers duly filed their bill of costs for taxation in compliance with this Court’s Order and that the release of the suit motor vehicle was ultimately effected upon reconciliation and settlement of the outstanding amounts. 3. In the case of **Samuel M. N. Mweru & Others v National Land Commission & 2 others** (supra), the Court in disallowing an application similar to this one held that - ***“It is an established principle of law that [45] in order to succeed in* *civil contempt proceedings, the applicant has to prove*(i) the terms of the order, *(ii)* Knowledge of these terms by the Respondent**, ***(iii).* Failure by the Respondent to comply with the terms of the order.*Upon proof of these requirements the presence of* *willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. [46] Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book*Contempt in Modern New Zealand [47] *who succinctly stated: -*** **"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: -** 1. **the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;** 2. **the defendant had knowledge of or proper notice of the terms of the order;** 3. **the defendant has acted in breach of the terms of the order; and** 4. **the defendant's conduct was deliberate.”(Emphasis added)** 5. Although contempt of court proceedings are civil in nature, the standard of proof required is almost equivalent to that of beyond reasonable doubt and higher than that of a balance of probabilities. The Court must be satisfied that there was deliberate and wilful disobedience of a clear order for it to arrive at a finding that there has been contempt of its orders. 6. The Court record shows that the Order issued by this Court in its Ruling delivered on 12th April 2024 was limited in scope to directing that the disputed Auctioneer’s fees be subjected to taxation. Upon a further examination of the said Ruling, this Court is inclined to agree with the respondents that the said Order did not expressly direct the immediate release of the suit motor vehicle, nor did it impose a direct and unqualified obligation upon the respondents to act in a particular manner beyond the taxation process. 7. It is therefore necessary to consider whether non-release of the suit motor vehicle, or the alleged failure to acknowledge certain payments, constituted breach of a clear and binding Court Order. It is trite law that Court Orders must be obeyed regardless of a party’s view of their correctness or regularity. The Order in question must however be sufficiently clear, specific, and unequivocal to be capable of enforcement through contempt proceedings. Contempt cannot be founded on implied obligations or disputed execution or accounting issues, it must be anchored on a clear, express, and unambiguous Court Order. 8. In this case, it is not in contest that the alleged contempt is anchored on interpretation of financial reconciliation between the parties and the procedural handling of Auctioneer’s fees pending taxation. This Court is of the considered view that these issues fall within the realm of dispute resolution and accounting, rather than clear disobedience of a positive Court Order. The requirement that Auctioneer’s fees be taxed does not, without more, translate into an automatic obligation to release the subject motor vehicle absent determination of related statutory or contractual entitlements. In the absence of a specific directive mandating immediate release of the suit motor vehicle or prohibiting retention pending taxation, this Court finds that it cannot be said that the respondents acted in express violation of this Court’s Orders issued in the Ruling delivered on 12th April 2024. 9. In light of the foregoing, this Court is not satisfied that the threshold for contempt of Court has been met, and therefore finds that the respondents are not in contempt of the Court Orders made on 12th April 2024. 10. Having found that the respondents are not in contempt of the said Court Orders, it follows that the reliefs sought in the instant application cannot issue. 11. The upshot of the foregoing is that the 1st defendant’s application dated 28th February 2025 is not merited. As a result, it is hereby dismissed with costs to the plaintiff and the 2nd interested party. It is so ordered. **DATED, SIGNED**and**DELIVERED**at**KIAMBU**on this**26TH** day of**JUNE, 2026.** **Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:** **Mr. Musungu Onesmus h/b for Mr. Tito for the plaintiff/respondent** **No appearance for the 1st defendant/applicant** **No appearance for the 2nd defendant** **No appearance for the objector** **No appearance for the interested parties** **Miss Julia – Court Assistant.**