Ndungu & 6 others v Mwangi & 4 others (Civil Appeal (Application) E337 of 2025) [2026] KECA 941 (KLR) (15 May 2026) (Ruling)

Ndungu & 6 others v Mwangi & 4 others (Civil Appeal (Application) E337 of 2025) [2026] KECA 941 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 941 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E337 of 2025 DK Musinga, M Ngugi & GV Odunga, JJA May 15, 2026 Between Eunice Muthoni Ndungu 1st Applicant Mary Wanjiku Ngure 2nd Applicant Alice Wanjiru Mwangi 3rd Applicant Esther Wairimu 4th Applicant Jane Wambui 5th Applicant Margaret Ngina 6th Applicant Mary Ngoiri 7th Applicant and James Irungu Mwangi 1st Respondent Equity Bank Limited 2nd Respondent The District Land Registrar Nairobi 3rd Respondent and Pauline Njoki Nderi 1st Interested Party Bangal Idid Towers Limited 2nd Interested Party (Being an application for an injunction pending the hearing and determination of the appeal from the Ruling and/or Order of the Environment and Land Court at Nairobi (D.M. Mwangi, J.) dated 5th December 2024 in ELC No. E042 OF 2024) Ruling 1.Before this Court is an application dated 6th November 2025 brought under the provisions of Article 159(2) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b), 43, 44 and 49 of the Rules of this Court. The applicants seek various interlocutory reliefs relating to the suit property known as Nairobi Block 50/769 (formerly LR No. 36/VII/534). The main orders sought are that an injunction be issued restraining the 1st respondent, James Irungu Mwangi, and the 2nd interested party, Bangal Idid Towers Limited, either by themselves, their servants or agents, from undertaking any further demolition, construction, development, or any dealings in the suit property; that the Officer Commanding California Police Station be directed to enforce the orders of this Court; and that the 1st respondent together with Abdi Aidid Ali, Ahmed Mahamed Elmi and Mohamed Abdullahi Abdi being the directors of the 2nd interested party be summoned to show cause why they should not be committed to civil jail for disobeying the court order issued on 24th March 2025. 2.In the body of the motion and in the affidavit in support sworn by Eunice Muthoni Ndung’u, the 1st applicant, it is contended that this Court had previously issued an order for maintenance of the status quo regarding the said property on 24th March 2025 in Civil Application No. Nai. E062 of 2025. According to the applicants, this Court directed that the status quo prevailing on the property be maintained pending the hearing and determination of the intended appeal, and further directed that the appeal be filed and served within thirty (30) days from the date of the said orders. 3.The applicants further contend that at the time the order was issued, the suit property had not been officially transferred to the 2nd interested party, and there was an unoccupied four-storey building that had previously housed residential tenants whom the 1st respondent had earlier on evicted. The applicants contend that despite the subsisting court order, the 2nd interested party and its agents invaded the suit property on the night of 31st October 2025, fenced it off using iron sheets, and commenced acts preparatory to demolition and redevelopment. 4.According to the applicants, on 3rd November 2025, the agents of the 2nd interested party began removing metallic window grills and door frames from the four-storey building and proceeded to knock down parts of the structure. The applicants rushed to the premises and documented the ongoing demolition through photographs and videos. They subsequently reported the incident at California Police Station, where they obtained OB number 53 of 3rd November 2025. However, the Officer Commanding Station declined to intervene on the basis that the earlier court order had not expressly directed enforcement through that police station. 5.The applicants further contend that an official search conducted at the Nairobi Land Registry on 5th November 2025 revealed that the suit property had been transferred to the 2nd interested party way after the issuance of the status quo order on 24th March 2025. It is asserted that the transfer was effected notwithstanding the fact that the applicants’ advocate had already registered the said court order against the title at the Nairobi Land Registry on 27th May 2025. According to the applicants, the transfer was undertaken with full knowledge of the subsisting court order, which the advocates for the 2nd interested party had previously consented to, thereby rendering both the transfer and the subsequent activities on the property unlawful. Consequently, the applicants contend that the 1st respondent is in contempt of court for facilitating the transfer in violation of the Court’s orders, while the 2nd interested party and its directors are likewise in contempt for entering the property, fencing it, and dismantling parts of the building, despite the continued subsistence of the said orders. 6.The applicants maintain that the actions of the respondents and the 2nd interested party are intended to defeat the authority of this Court, and irreversibly alter the subject matter of the dispute by demolishing the existing structure and commencing a new development. They, therefore, urge this Court to intervene and issue the orders sought so as to safeguard the integrity of this Court’s orders and the subject matter of the litigation. 7.James Irungu Mwangi, the 1st respondent, has sworn a replying affidavit in opposition to the application. He avers that he is no longer the registered owner of the suit property as the same had already been transferred to a third party, namely Bangal Idid Towers Limited, which is now on record as the 2nd interested party. He asserts that the transfer of the property had already been presented for registration and processed at the Nairobi Lands Registry well before the issuance of the status quo orders on 24th March 2025, and that consideration had been paid and vacant possession granted to the purchaser. According to the 1st respondent, the applicants’ allegation that the transfer was effected after the issuance of the status quo orders is therefore false and misleading. 8.He reiterates that as at the date this Court issued the status quo orders, he had already disposed of his interest in the suit property and no longer exercised possession, control, or beneficial interest over it. He maintains that the effect of this Court’s order could only be to preserve the prevailing state of affairs as at that date, and could not retrospectively undo a transfer that had already been executed and lodged for registration. Consequently, he asserts that he cannot be held responsible for actions undertaken on the property by the current owner. 9.With regard to the allegations that agents of the 2nd interested party invaded the property on 31st October 2025 and commenced demolition activities on 3rd November 2025, the 1st respondent categorically denies any involvement in, knowledge of, or participation in those activities. He contends that any actions undertaken on the property by the 2nd interested party or its agents were carried out independently in their capacity as the registered owner, and cannot be attributed to him, either in fact or in law. 10.The 1st respondent further avers that contempt of court proceedings are quasi-criminal in nature and require strict proof that a contemnor had clear knowledge of a valid court order and willfully disobeyed it. He asserts that liability for contempt cannot be imposed on the basis of conjecture, association, or vicarious liability, particularly where the alleged contemnor has no legal or factual control over the acts complained of. He reiterates that he has not undertaken any development, demolition, transfer, or other dealings with the suit property since the issuance of this Court’s orders, and therefore, cannot be said to have disobeyed them. 11.Lastly, the 1st respondent depones that the injunctive relief sought against him under rule 5(2)(b) of the Rules of this Court is untenable because he is no longer the registered owner of the suit property, and therefore, there is nothing capable of being preserved by an injunction against him. He further asserts that the applicants are aware that he had already divested his interest in the property, yet have nonetheless persisted in making contempt allegations against him instead of pursuing relief against the current registered owner. He therefore urges this Court to find that the application is without merit, unsupported by evidence and an abuse of the Court process, and to dismiss it with costs. 12.Vide a supplementary affidavit sworn in response to the replying affidavit by the 1st respondent, the 1st applicant avers that despite service of the application and the subsistence of the Court’s status quo orders issued on 24th March 2025, the disobedience of the said orders is continuing. She deposes that the 2nd interested party has since completely demolished the four-storey building that previously stood on the suit property and commenced excavation of the site. 13.She further challenges the 1st respondent’s averments that he is not liable for the demolition of the suit property as the suit property had been transferred to the 2nd interested party on 31st December 2024. She avers that investigations conducted by her advocates revealed irregularities in the alleged transfer process, including the absence of proper indication of stamp duty assessment, and the fact that the transfer was processed manually, despite the title having been converted to a system requiring online transactions, thereby raising concerns of possible fraud. She therefore reiterates that urgent intervention by this Court is necessary to preserve the subject matter of the appeal, and to safeguard the authority of the Court’s orders. 14.At the hearing of this application, the applicants were represented by learned counsel, Mr. Gesicho, who appeared together with learned counsel, Mr. Getange. The 1st respondent was represented by learned counsel, Mr. Ndegwa, while the 2nd respondent was represented by learned counsel, Ms. Matunda. Learned counsel, Mr. Eredi appeared for the 3rd respondent, and learned counsel Mr. Irungu for the 2nd interested party. Save for Mr. Eredi who did not take a position on the matter, the other counsel made oral submissions in support of their respective client’s positions. 15.Mr. Gesicho for the applicants reiterated that despite the status quo order issued on 24th March 2025, the 2nd interested party had proceeded to demolish the four-storey building on the suit property and commenced excavation works. 16.On the merits of the application under rule 5(2)(b), counsel contended that the applicants had satisfied the requirements under the said rule. He asserted that the appeal was arguable, particularly on the issue of locus standi of the administrators and beneficiaries of the estate, and further contended that unless the orders sought were granted, the appeal would be rendered nugatory since the suit property formed the substratum of the dispute. 17.On contempt, counsel maintained that the 2nd interested party had knowledge of the Court’s status quo order but nonetheless proceeded with demolition works in disobedience of the order. He therefore urged this Court to find the 2nd interested party and its directors in contempt and issue enforcement orders. Counsel also clarified that the applicants no longer pursued contempt proceedings against the 1st respondent. 18.Mr. Ndegwa for the 1st respondent elected to rely on his client’s replying affidavit, particularly in light of the confirmation by counsel for the applicants that the applicants were no longer pursuing contempt proceedings against the 1st respondent. 19.On her part, and although Ms. Matunda, learned counsel for the 2nd respondent, acknowledged that the orders sought in the application were primarily directed at the 1st respondent and the 2nd interested party, counsel nevertheless submitted that the appeal would not be rendered nugatory. She contended that should this Court ultimately determine the appeal in favour of the applicants, it would still retain the power to order the party currently in possession of the suit property to vacate it. Counsel further submitted that by the time this Court issued the status quo order on 24th March 2025, the suit property had already been transferred, and, in her view, the effect of maintaining the status quo was merely to prevent any further transfers rather than to reverse or undo a transfer that had already been completed. 20.For the 2nd interested party, Mr. Irungu informed this Court that his client had filed written submissions dated 23rd January 2026. However, upon checking the Court Tracking System, we confirmed that the said submissions were not available on record. In his oral submissions, counsel contended that his client had not been a party to the proceedings before the trial court nor to the application that resulted in the status quo order, and asserted that the present application was therefore procedurally defective for failure to properly join the 2nd interested party to the proceedings. Counsel further submitted that the application was unsustainable as it sought both contempt and injunctive relief, yet the threshold applicable to contempt proceedings is higher and distinct from that governing civil applications for injunctive orders. 21.Counsel also submitted that the 2nd interested party had acquired the suit property in 2024 and had since been in possession and was undertaking development thereon. He contended that his client could not be held in contempt of orders of which it had no knowledge, noting that there was no return of service demonstrating that the status quo order had been served upon the 2nd interested party. In addition, it was his submission that the appeal would not be rendered nugatory as this Court retained the power, if the appeal were successful, to order cancellation of the title and restoration of the property to the rightful owner, even though such an outcome might occasion loss to the 2nd interested party in light of the developments already undertaken. 22.During the hearing, the Court sought clarification from counsel regarding the advocate who had appeared on behalf of the 2nd interested party when the status quo order was issued on 24th March 2025. Counsel confirmed that an advocate from the firm that had represented his client in the proceedings before the trial court (Wetangula, Adan & Co.) had indeed appeared on that date and had filed a replying affidavit. However, he maintained that no instructions had been given to that advocate to appear before this Court. When questioned if his client had deponed that the advocate who appeared on that date had not been instructed or that they did not know the advocate, counsel conceded that there was no deposition to that effect, and further confirmed that the replying affidavit did not allege that the client had been misadvised by the advocate, or had sought clarification from him regarding the implications of the status quo order issued by this Court. 23.Counsel nonetheless maintained that the status quo order had not been clearly defined, and submitted that development on the property had commenced immediately after the property changed hands. He therefore urged the Court to dismiss the application for injunction and contempt with costs. 24.We have considered the application, the rival affidavits, the submissions made by counsel, and the applicable law. The application principally seeks two forms of relief: first, an order of injunction; and second, an order requiring the directors of the 2nd interested party to appear and show cause why they should not be committed to civil jail for disobeying the orders of this Court. We shall address each issue separately, beginning with the prayers sought under rule 5(2)(b) of the Rules of this Court. 25.It is trite law that in an application under rule 5(2)(b), an applicant must satisfy this Court that the appeal or the intended appeal is arguable, and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory. See Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. 26.On the first limb of arguability, it is trite that an arguable appeal is not one that must necessarily succeed, but one that raises at least a single bona fide point worthy of consideration. In the present case, one of the grounds in the memorandum of appeal dated 23rd April 2025 is that the learned judge erred in finding that the applicants lacked locus standi to sue, either as administrators or beneficiaries of the estate, without involving the 1st respondent, a co-administrator who is alleged to have fraudulently transferred the suit property to himself. That issue, in our view, raises questions concerning the management of estate property, the authority of personal representatives, and the rights of beneficiaries to challenge transactions allegedly undertaken in breach of fiduciary duty. This issue is not frivolous, and is sufficient to satisfy the first limb of rule 5(2)(b). 27.As regards the nugatory aspect, this Court in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra) stated that in determining whether an appeal would be rendered nugatory, the Court must consider whether what is sought to be stayed, if allowed to occur, would be reversible or, if not reversible, whether damages would adequately compensate the aggrieved party. In the present case, the applicants contend that the suit property constitutes the substratum of the appeal and that the demolition of the existing structure and the commencement of redevelopment works have already altered the character of the property. They contend that continued development will irreversibly transform the property and thereby defeat the purpose of the appeal. The 2nd interested party on the other hand maintains that even if the development proceeds, this Court retains the power, should the appeal succeed, to cancel the title and restore the property to the rightful owner. 28.From the material placed before us, it is not disputed that the four- storey building that previously stood on the suit property has already been demolished, and that excavation works have commenced. In our view, if redevelopment is allowed to proceed during the pendency of the appeal, the character and value of the property may be substantially altered, thereby complicating the enforcement of any eventual judgment of this Court. Moreover, the dispute concerns property alleged to form part of a deceased person’s estate, and its continued alteration or redevelopment may not be adequately compensable by an award of damages. In those circumstances, we are satisfied that unless an order of injunction is granted to preserve the suit property, the substratum of the appeal may be lost, and the intended appeal, if successful, rendered nugatory. 29.Turning to the issue of contempt, it is a settled principle that an applicant seeking to establish civil contempt must demonstrate the existence and terms of the order, that the respondent or alleged contemnor had knowledge of those terms, and that there was a failure to comply with the order. Once these elements are established, willfulness and bad faith on the part of the respondent may ordinarily be inferred, although the respondent is at liberty to rebut that inference by contrary evidence. Regarding the applicable standard of proof, this Court in Mutitika v Baharini Farm Ltd [1985] eKLR held that contempt proceedings require a standard of proof higher than that on a balance of probabilities, though not as high as proof beyond reasonable doubt. 30.In the present matter, the applicants having abandoned their prayer against the 1st respondent, the central issue is whether the 2nd interested party had knowledge of the status quo order made by this Court on 24th March 2025, and whether its subsequent actions amounted to deliberate disobedience of that order. The record shows that when the applicants’ application under rule 5(2)(b) dated 30th January 2025 came up for hearing on 24th March 2025, Ms. Noor, an advocate from the firm of Wetangula Adan & Co., which had represented the 2nd interested party before the trial court, was present in Court. During the hearing of the present application, Mr. Irungu, counsel for the 2nd interested party, acknowledged that Ms. Noor appeared in Court, and further, that the said firm had filed a replying affidavit on behalf of the 2nd interested party opposing that application. The record shows that the replying affidavit was sworn by one Mohamed Abdullahi Abdi, a director of the 2nd interested party. Nonetheless, counsel contended that the said advocate had not been instructed to represent the 2nd interested party in the proceedings before this Court. However, when questioned by the Court, counsel conceded that there was no deposition by the 2nd interested party to the effect that the said advocate had either acted without instructions, or that the 2nd interested party did not recognize him as its advocate. Counsel further confirmed that in the alleged replying affidavit dated 23rd January 2026, his client does not allege that he had been misadvised by that said advocate after she appeared in Court on 24th March 2025, or that any steps had been taken to repudiate the advocate’s actions. 31.In the circumstances, the contention that the 2nd interested party lacked knowledge of the order cannot be sustained. Knowledge of a court order may be inferred where a party is represented by counsel who appears in court when the order is issued. Indeed, in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, this Court considered whether knowledge of a Court order or judgment by an advocate of the alleged contemnor would be sufficient for contempt proceedings and stated in the affirmative that:“We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions of a party, then it behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” 32.The status quo order issued on 24th March 2025 required that the prevailing condition of the suit property be maintained pending the hearing and determination of the appeal. The said order was intended to preserve the subject matter of the dispute and to prevent any party from altering it to the prejudice of the other parties. The material placed before the Court shows that the four- storey building that previously stood on the suit property has since been demolished and excavation works commenced. These acts, in our view, represent a substantial alteration of the condition of the property and are inconsistent with the obligation to maintain the status quo. 33.The 2nd interested party has made the argument that the order was not clearly defined, and that development had commenced before the order was issued. We are not persuaded by that argument. A status quo order operates to freeze the state of affairs as it existed at the time the order was made. Once such an order is issued, parties must refrain from undertaking acts that change the condition of the property in dispute. 34.In our view, the conduct of the 2nd interested party in demolishing the existing structure and commencing excavation works constituted a clear breach of the obligation to maintain the status quo. The evidence before this Court shows that these actions took place between 31st October 2025 and 3rd November 2025, and were reported to the police on 3rd November 2025, with an OB recorded in that regard. These acts, therefore, occurred after the status quo order had been issued and while the appeal remained pending before this Court. In those circumstances, the inference of deliberate disobedience is unavoidable. This Court has repeatedly stressed that obedience to court orders is not optional, it is mandatory. In Kenya National Union of Teachers & 2 others v Teachers Service Commission [2018] eKLR, this Court held thus:“The reason for invoking contempt of court proceedings is to protect the dignity and authority of the court. See Commercial Bank of Africa Limited versus Isaac Kamau Ndirangu [1992] eKLR where Muli, JA stated:“It is imperative that orders of the court must be obeyed as a cardinal basis for endorsement of judicial authority and dignity.To do otherwise would erode the dignity and authority of the courts.”The obligation of an addressee(s) of a court order was explicitly stated by Romer L.J in Hadkinson versus Hadkinson [1952] ALLER 567 as follows:“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. Lord Cottenharm, L.C., said in Chuck versus Cremer (1) (1 Coop.temp.cott. 342):“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that suitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed”. 35.In view of the foregoing, the material before this Court establishes beyond any peradventure that the 2nd interested party had knowledge of the status quo order issued on 24th March 2025, but nevertheless proceeded to undertake acts that fundamentally altered the condition of the suit property. Such conduct amounts to willful disobedience of a lawful order of this Court. Consequently, we find and hold that the 2nd interested party and its directors, namely Abdi Aidid Ali, Ahmed Mahamed Elmi and Mohamed Abdullahi Abdi acted in contempt of this Court. In the premises, we order that the said directors appear before this Court on a date as shall be specified by the Registrar of this Court to show cause why they should not be punished for contempt of court. 36.In the end, the notice of motion dated 6th November 2025 is merited and is allowed only to the extent of the reliefs sought against the 2nd interested party and/or its directors. The costs of this application shall be borne by the 2nd interested party. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.D. K. MUSINGA (PRESIDENT)…………………………………JUDGE OF APPEALMUMBI NGUGI…………………………………JUDGE OF APPEALG. V. ODUNGA…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.