https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4940

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC. MISC. APP. NO. E018 OF 2026** **BETWEEN** **MWEMBELEGEZA COMMUNITY RESIDENTS ......APPLICANTS -AND-** **MR. JEIZAN FARUK; SECRETARY COUNTY** **GOVERNMENT OF MOMBASA ......................1ST RESPONDENT** **MR. MOHAMED HUSSEIN MOHAMED; MOMBASA COUNTY** **EXECUTIVE COMMITTEE MEMBER FOR LANDS,** **PLANNING AND HOUSING .........................2ND RESPONDENT** **MARIAN MAPENZI; MOMBASA COUNTY** **CHIEF OFFICER FOR DEPARTMENT OF LANDS,** **PLANNING AND HOUSING .........................3RD RESPONDENT** **MR. SAID GULEID; MOMBASA COUNTY** **DIRECTOR OF INSPECTORATE .................. 4TH RESPONDENT** **MR. MAMO BORU MAMO; DIRECTOR GENERAL** **FOR NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY (NEMA)................................. 5TH RESPONDENT** **RULING** 1. By the Notice of Motion dated 16th March 2026, Mwembelegeza Community Residents (the Applicants) pray for orders as follows: 2. **Spent;** 3. **That this Honourable Court be pleased to find the Respondents: Mr. Jeizan Faruk, Mr. Mohamed Hussein Mohamed, Marian Mapenzi, Said Guleid and Mr. Mamo Boru Mamo in contempt of the order of this Court as issued on the 3rd March 2023 and subsequent order of Mandamus as issued on 29th January 2025 by the Hon. Justice Stephen Kibunja;** 4. **That the Honorable Court be pleased to order that the Respondents be committed to civil jail for a term not exceeding six (6) months for contempt of Court Order issued on the 3rd March 2023 and subsequent order of Mandamus issued on 29th January 2025 by the Hon. Justice Stephen Kibunja;** 5. **That in the alternative to prayer 3 above, this Honourable Court be pleased to impose a penalty of a fine of a figure to be ascertained by the Court against the said Respondents Mr. Jeizan Faruk, Mr. Mohamed Hussein Mohamed, Marian Mapenzi, Said Guleid and Mr. Mamo Boru Mamo; and** 6. **That this Honourable Court be pleased to issue all necessary and consequential directions in respect of the contempt as may be necessary for the ends of justice to be met.** 7. The application is supported by an Affidavit sworn on behalf of the Applicants by their representative Aineah Ragen and is based on the grounds, inter alia: 8. **That the Applicants filed an amended Petition dated 26th January 2021 in primary case No. ELC Pet 35 Of 2020 being Mwembelegeza Community Residents -Vs- National Land Commission & 6 Others, which was heard and a judgment was issued by this Court on 3rd May 2023 in favour of the Applicants requiring that the developments/ structures on Plot No. 1476 Mwembelegeza Scheme be removed by the proponents and developers within 90 days and that should they fail to comply with the said orders/decree, the County Government of Mombasa and the National Environment Management Authority (NEMA) were required to demolish the same and the costs incurred in the exercise be met by the developers;** 1. **That in spite of the said judgment and decree being served upon the County Government of Mombasa and NEMA whose accounting officers are the 1st and 5th Respondents; and upon the same being served upon the 2nd to 4th Respondents whose mandate is to effect demolition, they have failed to comply;** 2. **That on 8th January 2024, the Applicant filed an application under Certificate of Urgency Reference No. ELC. JR. E001 of 2024 seeking the Court’s leave to apply for Judicial Review Orders of Mandamus compelling the Respondents to satisfy the decree issued in ELC Petition No. 35 of 2020;** 3. **That the said application was heard on 29th January 2024 and the Applicant was granted leave to apply for Judicial review orders of mandamus;** 4. **That subsequently the Applicants filed an application dated 31st January 2024 which was allowed on 29th January 2025;** 5. **That the said Ruling and the Orders of Mandamus issued therein were subsequently served upon the Respondents but to-date, the Respondents have utterly refused to comply with the orders.** 6. **That the Respondents are public/state officers exercising delegated power under the Constitution of Kenya and their failure to act on the said orders is a gross violation of the Constitution and an act of impunity; and** 7. **That it is imperative for the Court to find the Respondents in contempt of this Court and to issue appropriate orders as prayed in this application.** 8. I have carefully perused and considered the application before the Court. The Respondents did not file any response despite service. 9. By their application before the Court, the Applicants pray for an order that the Respondents be cited for contempt for disobedience of the Court orders issued herein on 3rd March 2023. In addition, the Plaintiff has urged the Court to be pleased to order that the Respondents be committed to Civil Jail for a term not exceeding six (6) months for the alleged contempt. In the alternative, the Applicants pray that the Court imposes a penalty of a fine upon the Respondents for the disobedience. 10. Contempt of Court has been defined as conduct or action that defies or disrespects the authority of the Court. In that regard, Section 5 of the Judicature Act confers jurisdiction on the Superior Courts to punish for contempt. Additionally, Section 29 of the Environment and Land Court Act confers jurisdiction upon this Court to punish a party found to be in disobedience or breach of its orders. 11. As the Court of Appeal stated in the case of ***Econet Wireless Kenya Limited –vs- Minister for Information and Communications of Kenya & Another (2005) eKLR:*** **“…… It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts are upheld at all times. This court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proven contemnors.** **In HADKINSON –V- HADKINSON (1952) 2 All ER. 567, it was held that:** **“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. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”** 1. Considering a matter similar to the one before me in ***Samuel M. N. Mweru & Others –vs- National Land Commission & 2 Others (2020) eKLR,*** Mativo J., (as he then was) held as follows: **“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....”** 1. As to the standard of proof required in a matter such as this, 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 contemnors conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court order.”** 1. In the matter herein, it was not in dispute that this Court did on 29th January 2025 issue orders of Mandamus compelling the County Government of Mombasa, the Secretary, County Government of Mombasa, the National Environment Management Authority (NEMA) and its Director General to satisfy the decree of the Court as issued in Mombasa ELC Petition No. 35 of 2020; ***Mwembelegeza Community Residents –vs- the National Land Commission and 6 Others***. 2. The said decree had directed that the developments/ structures on Plot No. 1476 Mwembelegeza Scheme be removed by the proponents and developers thereof within 90 days failure to which the County Government of Mombasa and the National Environment Management Authority were required to demolish the same. 3. According to the Applicants, those orders were served upon the Respondents through letters and emails urging them to comply therewith. It is the Applicants case that despite service thereof and a meeting held at the boardroom of the 1st Respondent following his invitation, the Respondents had refused to comply therewith. In support of that position, the Applicants have annexed to their Supporting Affidavit copies of various letters and emails said to have been sent to the Respondents. 4. In respect of Orders issued by the Courts, Order 48 Rule 2 of the Civil Procedure Rules provides as follows: **“All orders, notices and documents required by these Rules to be given to or served on any person shall, save where other provision is made, be served in the manner provided for the service of summons.”** 1. Order 5 Rule 3 of the Civil Procedure Rules on the other hand provides as follows: **“Subject to any other written law, where the suit is against a corporation the summons may be served—** 1. **on the secretary, director or other principal officer of the corporation; or** 2. **if the process server is unable to find any of the officers of the corporation mentioned in rule 3(a)—** 3. **by leaving it at the registered office of the corporation;** 4. **by sending it by prepaid registered post or by a licensed courier service provider approved by the court to the registered postal address of the corporation;** 5. **if there is no registered office and no registered office or physical address of the corporation, by leaving it at the place where the corporation carries on business; or** 6. **by sending it by registered post to the last known postal address of the corporation.”** 7. In the matter herein, I was unable to find any evidence that the 2nd to 5th Respondents had been made aware of the Court Orders in the manner required by law. As the Court of Appeal stated in the case of ***Nyamodi Ochieng Nyamogo & Another –vs- Kenya Posts & Telecommunications Corporation (1994) KECA 114 (KLR)***: **“The law on the question of service of orders stresses the necessity of personal service. In Halsbury’s Laws of England (4th Ed) Vol 9 on p 37 para 61 it is stated:** **“61. Necessity of personal service. As a general rule, no order of court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.** **Where the order is made against a company, the order may only be enforced against an officer of the company if this particular officer has been served personally with a copy of the order.** 1. In the circumstances herein, I was not persuaded that the 2nd to 5th Respondents had been given proper and lawful notice of the terms of the orders issued in ELC Petition No. 35 of 2020 on 29th January 2025. 2. In respect of the 2nd to 4th Respondents, even where one were to assume that they had knowledge of the orders issued, there were no sufficient grounds given why they were cited for contempt. All the Applicants have stated in their Supporting Affidavit was that the orders were served upon the 2nd to 4th Respondents “whose mandate is to effect demolition.” No explanation or evidence was however given as to that mandate and I was not persuaded that they could exercise that so-called mandate on their own. 3. In regard to the 1st Respondent, I had no difficulty coming to the conclusion that he was aware of and had deliberately chosen to disobey the Court Orders. That much was clear from the correspondence he had had with the Applicants in his capacity as the Secretary of the County Government of Mombasa. 4. It was evident that subsequent to the issuance of the orders on 29th January 2025, the same had been extracted on 4th February 2025 and were served at the County Attorney’s Office situated on the 6th Floor of Bima Towers on Digo Road, Mombasa. It was also apparent that evidence of such service plus a copy of the Ruling were sent to 1st Respondent by a letter written by the Applicants’ representative Mr. Ragen on 7th February 2025. 5. On 11th February 2025, the 1st Respondent acknowledged receipt of the Applicant’s letter and wrote back to Mr. Ragen as follows: **“RE: ORDER O MANDAMUS ISSUED BY COURT** **We acknowledge receipt of your letter, dated 7th February 2025 regarding the above matter.** **The purpose of this letter is to invite you for a meeting on Friday, 14th February 2025, at 2.30 P.M. at the County Secretary’s Boardroom to discuss on this matter.** **.......”** 1. Arising from the foregoing, it was evident that the 1st Respondent has been aware of the orders of mandamus issued herein since 11th February 2025. That he has chosen not to do anything about the orders cannot be interpreted otherwise other than as a blatant disregard of the same. I am accordingly persuaded that the 1st Respondent has acted in contempt of the Court Orders. 2. In the premises a Notice to Show Cause is hereby issued requiring the 1st Respondent to appear personally in this Court on Tuesday 22nd September 2026 to show cause why he should not be committed to jail for the said contempt. 3. The costs of this Application shall be borne by the 1st Respondent. 4. It is so ordered. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Ainea Ragen the Applicant c) Mr. Tajbhai Advocate for the Respondents