https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3673

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NO. 104 OF 2021** **MOMBASA TRADE CENTRE ………. PLAINTIFF/RESPONDENT** **VERSUS** **EAST AFRICA INSTITUTE OF CERTIFIED STUDIES** **DANIEL WAKABA MACHARIA** **SERAH WANJIRU MACHARIA ... DEFENDANTS / APPLICANTS** **ZOYA JIWAN ………….……............. 1ST ALLEGED CONTEMNOR** **VINTAGE AUCTIONEERS.…….…… 2ND ALLEGED CONTEMNOR** **RULING** 1. By the Notice of Motion dated 18th November 2025, the three (3) Defendants pray for the following: 2. **Spent;** 3. **That the** **Plaintiff/Respondent, Zoya Jiwan and Vintage Auctioneers be cited for contempt of Court orders dated the 19th June, 2024 and 2nd December 2024;** 4. **That it found in contempt they be committed to civil jail for six months or that their assets be attached to compensate the Defendants/ Applicants for the loss suffered as a result of the contempt; and** 5. **Costs of the application.** 6. The application is supported by an Affidavit sworn by Daniel Wakaba Macharia (the 2nd Defendant) and is premised on the grounds that: 7. **The Honourable Court issued Orders dated the 19th June 2024 and 2nd December 2024;** 8. **The said orders were known to the Plaintiff and alleged Contemnors;** 9. **The said orders have not been complied with to- date.** 10. Mombasa Trade Centre (the Plaintiff/Respondent) is opposed to the grant of the orders sought. By their Grounds of Opposition dated 8th December 2025, the Plaintiffs assert: 11. **That the application is scandalous, frivolous, vexatious, misconceived, unmerited, bad in law, fatally defective and amounts to a gross abuse of the Court process;** 12. **That the application as filed amounts to collusion between the Defendants and the alleged objector to defeat the course of justice;** 13. **That the Defendants have no right to purport to enforce orders that were not obtained in their favour;** 14. **That there is no or no proof of any valid service of the alleged orders upon any of the parties;** 15. **That the application as drawn offends the procedure for filing of contempt proceedings and the same ought to be struck out *in limine*; and** 16. **That the orders sought to be enforced were overtaken by events.** 17. Zoya Jiwani (the 1st Alleged Contemnor) is equally opposed to the application. In her Replying Affidavit sworn on 8th December 2025, she avers that she is not a party to this suit and the inclusion of her name in the application is irregular and un-procedural. It is further her case that no valid Court order has been issued against herself. 18. I have carefully perused and considered both the application as well as the respective responses thereto. I have similarly perused and considered the submissions and authorities placed before the Court by the Learned Advocates representing the parties. 19. By their application before the Court, the Defendants pray for an order that the Plaintiffs together with one Zoya Jiwani and Messrs Vintage Auctioneers be cited for contempt of Court Orders issued on 19th June 2024 and 2nd December 2024 and that the Alleged Contemnors be committed to civil jail. Both the Plaintiff and the 1st Alleged Contemnor are opposed to the application. 20. The genesis of the application is the judgment delivered herein by the Honorable Justice L.L. Naikuni in favour of the Plaintiff and against the Defendants on 22nd June 2023. Subsequent to that judgment, the Plaintiff moved to execute the same and attached several motor vehicles which, according to the Plaintiff belonged to the Defendants and advertised the same for sale. 21. Following the said advertisement and by a Notice of Motion application dated 13th June 2024, Messrs Equity Bank (K) Limited filed an Objection to the attachment claiming to have a legal interest over the attached motor vehicles which ranked in priority and that the said Objector was not aware of the suit until after the attachments were carried out. 22. Having heard the application and by his Ruling delivered on 2nd December 2024, the Learned Judge allowed the Objector’s application and proceeded to issue orders as follows: **“a) That the Notice of Motion dated 13th June 2024, be and is hereby found to have merit thus allowed entirely;** 1. **That the Honorable Court be and is hereby pleased to issue an order that the attachment by the Plaintiff pursuant to the decree dated 22nd June 2023 and the warrants of attachment issued by this Court to Vintage Auctioneers be raised forthwith and the motor vehicle registration numbers KCX 124X, KCX 076Y, KCX 134X, KCV 374A, KCX 127X, KCX 129X and KCX 133X be released forthwith; and** 2. **That the Objector shall have the cost of this application.”** 3. According to the Defendant – Judgment debtors the said orders were known to the Plaintiff and the two Alleged Contemnors but they have refused to comply herewith. 4. Black’s Law Dictionary, 11th Edition defines contempt as – **“Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.”** 1. In that respect, Section 29 of the Environment and Land Court Act provides as follows: **“29. Offences** **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.”** 1. On the standard of proof regarding contempt proceedings, the Court of Appeal in the case of ***Mutitika –vs- Baharini Farm Limited (1985) KLR 229, 234***, held as follows: **“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...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 an offence which can be said to be quasi-criminal in nature. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she wilfully acted in a manner that flouted the Court Order.”** 1. In the matter herein, it was telling that the Objector that had sought and obtained the orders said to have been flouted was not the one who was claiming that they had been disobeyed. Instead, it was the Defendant/Judgment Debtors who were accusing the Judgment Creditor of their disobedience. 2. It was also evident from a perusal of paragraphs 6, 9 and 11 of the Affidavit in support sworn by Daniel Wakaba Macharia that while the orders were issued on 2nd December 2024, the same were only served upon the Plaintiff on 13th August 2025 while the 2nd Alleged Contemnor was allegedly served on 18th September 2025. The 2nd Alleged Contemnor was not a party to the suit and it was not clear to me why she was being accused of any disobedience of the order. 3. In the circumstances, it was apparent to me that the application to cite the Plaintiff and the Alleged contemnors was actuated by other motives and that there was no sufficient evidence to point to the fact that those accused of flouting the orders had been made aware of the same and that they had deliberately disobeyed the orders. 4. In the premises I did not find any merit in the Motion dated 18th November 2025. The same is hereby dismissed with costs. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 17th day of June, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Takah holding brief for Mutubia Advocate for the Plaintiff/Respondent c) Mr. Okello Advocate for the Defendants/Applicants