https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9282

Mwangi v Wambui & another (Commercial Case 185 of 2009) [2026] KEHC 9282 (KLR) (Commercial and Tax) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 9282 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 185 of 2009 MO Ado, J June 18, 2026 Between Lucy Wairimu Mwangi Plaintiff and Monica Jackline Wambui 1st Defendant Pauline Mukuhi Nganga 2nd Defendant Ruling 1.For determination is the Plaintiff's Notice of Motion dated 29th August 2025 seeking, inter alia, that the Defendants be cited for contempt of court and committed to civil jail for six months and/or fined for allegedly disobeying the judgment and decree of this Court delivered on 18th May 2020. 2.The application is supported by the affidavit of Lucy Wairimu Mwangi sworn on 29th August 2025. It is opposed principally through the replying affidavit of the 1st Defendant, Monica Jackline Wambui, sworn on 10th September 2025. 3.The background of the matter is that on 18th May 2020, this Court entered judgment in favour of the Plaintiff. The Court declared that the Defendants had no right, title, or interest in the suit property, known as Maisonette No. 6, Casablanca Villas, erected on L.R. No. 209/5827. The Court also issued a permanent injunction restraining the Defendants from interfering with the Plaintiff's quiet possession of the property and ordered the eviction of the Defendants from the suit premises. 4.Subsequently, on 9th February 2022, the Court authorized execution of the eviction orders through Gallant Worldwide Auctioneers and directed the OCS Kilimani Police Station to provide security during the exercise. 5.The Plaintiff contends that notwithstanding the judgment and subsequent execution orders, the Defendants continued resisting eviction and, after an eviction exercise undertaken in July 2025, forcefully re-entered and repossessed the property on 26th July 2025. 6.The Defendants deny contempt and maintain that there are unresolved issues concerning the validity of the Plaintiff's title, alleged fraud, pending proceedings, and other matters. Analysis and Determination 7.The sole issue is whether the Plaintiff has established contempt of court against the Defendants to the required standard. 8.It is trite law that Contempt proceedings are quasi-criminal in nature and need, therefore, to be proved on a standard higher than a mere balance of probabilities, but not beyond reasonable doubt as required in criminal cases. The Court of Appeal in Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), while addressing the question, stated 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. We envisage no difficulty in courts determining the suggested standard of proof. 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 offence which can be said to be quasi–criminal in nature Winn LJ on page 1064 was in our view right in saying that the guilt has to be proved.” 9.The Court, quoting Lord Denning MR. (as he then was), at page 1063 in Re Breamblevale Ltd [1969] 3 All ER 1062, further observed that:“A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved. To use the time–honoured phrase, it must be proved beyond reasonable doubt”. 10.To succeed in a contempt application, an applicant must prove, to a standard higher than on a balance of probabilities, the existence of a clear and unambiguous court order; knowledge of the order by the alleged contemnor; breach of the order; and wilful and deliberate disobedience of the order. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, Mativo J (as he then was) stated that:“40.It is an established principle of law that 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. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand 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:-(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.” 11.The purpose of contempt jurisdiction is to safeguard the authority of the court and uphold the rule of law. In Teachers Service Commission Vs Kenya National Union of Teachers & 2 others (2013) eKLR Ndolo J observed that;“The reasons why courts will punish for contempt of court then is to safeguard 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 safeguard the rule of law” 12.The judge went further to state;“I am of the same persuasion that the reason why power is vested in courts to punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. The law of contempt has evolved over time in order to maintain the supremacy of the law and the respect for law and the respect for law and order. As it was in the time of Chief Justice Mckean in 1786 so it is today that courts have a duty to ensure that Citizens bend to the law and not vice versa./ Indeed, if respect for law and order never existed, life in society would be but short, brutish and nasty. It is the supremacy of the law and the ultimate administration of justice that is usually under challenge when contempt of court is committed. This is so because, a party who obtains an order from court must be certain that the order will be obeyed by those to whom it is directed. As such, the obedience of a court order is fundamental to the administration of justice and the rule of law. A court order once issued binds all and sundry, the mighty and the lowly equally, without exception. An order is meant to be obeyed and not otherwise.” 13.In the present case, there is no dispute that a judgment was delivered on 18th May 2020 declaring the Plaintiff entitled to the suit property, ordering the Defendants' eviction and permanently restraining them from interfering with the Plaintiff's possession. 14.There is equally no dispute that the Defendants were aware of the judgment and subsequent proceedings. Indeed, the Defendants have participated in numerous post-judgment applications, appeals, and execution proceedings arising from the judgment. 15.The principal contention by the Plaintiff is that after execution of the eviction orders and after the Plaintiff had taken possession of the property, the Defendants, accompanied by other persons, forcibly re-entered the premises on 26th July 2025 and dispossessed the Plaintiff. The Plaintiff relies on her affidavit evidence and the report made to Kilimani Police Station. 16.The Defendants deny wrongdoing and raise various issues, including allegations of fraud, pending investigations, alleged defects in the decree, an application dated 30th July 2025, and constitutional complaints. However, none of those matters amounts to a stay of execution or suspension of the judgment on record. In fact, the material before the Court indicates that previous attempts to challenge the judgment or obtain relief in appellate proceedings were unsuccessful, and no subsisting stay order has been demonstrated. 17.It is settled law that a court order remains binding unless set aside, varied or stayed by a competent court. A party cannot justify non-compliance by asserting that the order is erroneous or by raising collateral complaints. 18.However, the critical question is whether this Court, on the material presently before it, can make a finding of contempt attracting penal sanctions. 19.Whereas the Plaintiff has established the existence of the orders and the Defendants' knowledge thereof, the evidence regarding the alleged forcible re-entry primarily consists of affidavit evidence, which is disputed by the Defendants. There is therefore no clear and cogent evidence that the alleged contemnors personally and wilfully violated the orders of the Court. 20.Accordingly, I am not persuaded that the evidentiary threshold necessary for committal to civil jail has been met to the requisite standard. 21.That said, it is, however, evident from the record that the Defendants have acted in a manner inconsistent with the judgment and decree of this Court and have continued to impede the Plaintiff's enjoyment of the fruits of her judgment. Consequently, the interests of justice would, in my view, therefore be better served by enforcing compliance with the decree rather than imposing custodial sanctions at this stage. 22.Accordingly, I make the following orders:i.A declaration is hereby issued that the judgment and decree of this Court delivered on 18th May 2020 remain valid, binding and enforceable.ii.The Defendants, their servants, agents and all persons acting under their authority shall forthwith vacate and cease interfering with the Plaintiff's possession of Maisonette No. 6, Casablanca Villas, erected on L.R. No. 209/5827.iii.The Officer Commanding Station, Kilimani Police Station, shall provide security and assistance necessary to ensure enforcement of the eviction orders previously issued by this Court.iv.The prayer seeking committal of the Defendants to civil jail is declined at this stage.v.The Defendants are warned that any further disobedience of the orders of this Court shall expose them to contempt sanctions, including imprisonment and/or fines.vi.Costs of the application are awarded to the Plaintiff. 23.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURTIn the Presence of:Moses C/AN/A………………for the ApplicantNyborna h/b for Ojiambo……………for the Respondent