Musyoka v Kung'u (Environment and Land Appeal E063 of 2024) [2026] KEELC 4958 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCA CASE NO. E063 OF 2024** **RICHARD MULWA MUSYOKA::::::::::::::::::::::::::::::::::::::APPELLANT** **VERSUS** **FAITH MELI KUNG'U::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **RULING** The application is dated 19th July 2025 and is brought under Sections 1A, 1B, 3A, 63 (C) & (e) of the Civil Procedure Act, Order 40 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 159 of the Constitution seeking the following orders: 1. That, the Honourable Court be pleased to cite the Respondent, Faith Meli Kung'u, for contempt of court for willfully disobeying and violating the status quo by undertaking an illegal eviction on 19th, 20th and 21st March 2025 while appeal and stay proceedings were pending. 2. That, this Honourable Court be pleased to commit to Civil jail the following persons for aiding and abetting the contempt. 3. Henry Kung'u Leigh 4. Gedion Nzuki Vunga (Nzuki Construction) 5. Titus Ndaka 6. David Mutuku Muia 7. Sammy David Ndaka 8. Karis Wambua Kariuki 9. Stephen Benard 10. Richard Muatha 11. Nicholas Kyalo Safari 12. That, the Court be pleased to award punitive damages and costs against the Respondent and her co-contemnors. 13. And or, the Respondent / contemnor and her goons, Gedion Nzuki Vunga, Stephen Benard, Titus Ndaka, David Mutuku Muia, Nicholas Kyalo Safari, Richard Muatha, Henry Kung'u be gagged or compelled to desist from discussing their imaginary “weakness” of the stay application and appeal all pending before the honourable court. 14. That, costs of this Application be provided for. The application is based on the following grounds the Respondent and her agents carried out the eviction in defiance of court process, using deceit and fraud. Two tractors with concealed registration numbers were used to demolish buildings at night. The Respondent falsely claimed to the public that she had warrants and had served demolition notices. Goons falsely claiming to be registered auctioneers included individuals from Nzuki Construction and others mentioned above. The appeal and stay application are pending before this Court, and the Respondent’s counsel was fully aware. The judgement being executed is per incuriam and contrary to law and equity. The Respondent opposed the application and stated that they have not been served with any order of status quo hence the Respondents cannot be in contempt. This court has considered the application and submissions therein. The Black’s Law Dictionary (Ninth Edition) defines contempt of court as; “*Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment*.” This application is anchored on section 63 (c) of the Civil Procedure Act which provides that; “*63) In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed: -* *(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*” Pursuant to section 63(c) aforesaid, it is provided under order 40 Rule 3(1) of the Civil Procedure Rules that; “*3(1) in case of disobedient breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release”* In the case of Teachers Service Commission vs Kenya National Union of Teachers & 2 others (2013) eKLR the court stated as follows; “*The reason why courts will punish for contempt of court then is to safe guard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the Applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law.”* Contempt of court is a grave matter as it concerns the dignity of the court when law and order is threatened and the fact that liberty and fundamental rights and freedoms of the alleged contemnor are at stake. The standard of proof is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt. In the case of Republic vs Ahmad AbolfathiMohammed & Another (2018) eKLR**,** the Supreme Court stated as follows: *“We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that:* *‘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”* In the instant case it is on record that the lower court delivered judgement against the Applicant on the 29th October 2024 in CMCC No. 1142 of 2024. The Applicant was ordered to pay to the Respondent Kshs. 700,000/= plus interest from 2013 within 30 days failure to which eviction to issue. The Applicant filed this appeal ELCA No. 63 of 2024 in Machakos and an application dated 18th November 2024 before this court for stay of execution pending appeal which was dismissed for lacking merit. Hence there is no order for status quo subsisting in this matter and the Respondents cannot be held in contempt if they executed the decree. I find this application is not merited and is dismissed with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 30TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**