https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12291

NM v IMN (Civil Suit 5 of 2016) [2026] KEHC 12291 (KLR) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12291 (KLR) Republic of Kenya In the High Court at Nakuru Civil Suit 5 of 2016 JK Sergon, J July 30, 2026 IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY AND IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN'S PROPERTY ACT 1982 THE MATRIMONIAL PROPERTY ACT NO 49 OF 2013 Between NM Applicant and IMN Respondent Ruling 1.By a Notice of Motion dated 14th November 2025, the applicant seeks the following orders:(a)Spent.(b)That the honourable court be pleased to summon the respondent before court and order her to surrender the rents she has been personally collecting instead of Muigai Commercial Agencies from the rental premises;(c)That the honourable court do punish the respondent for willfully disobeying the court orders that gave Muigai Commercial Agencies the rights of collecting and disbursing the rents upon deduction of the running costs;(d)That the honourable court do issue orders of injunction restraining the respondent from collecting rent, carrying out any repairs of the rental premises and allows Muigai Commercial Agencies to carry out its mandate as per the court order of 5th October 2022;(e)That the respondent gives full access to Muigai Commercial Agencies to conduct their business and failure to comply the OCS Gilgil police station be mandated to oversee the agents accessibility to the premises and tenants;(f)Any other relief that the honourable court may deem fit to grant;(g)That costs be provided for. 2.The application is supported by the affidavit of NM and written submissions dated 5th May 2026. It is opposed by the respondent through her replying affidavit sworn on 27th November 2025 and written submissions dated 20th May 2026 which I have all considered. 3.On 16th March 2022, this Court (Ngetich J) delivered Judgment distributing the parties' matrimonial properties at the ratio of 60:40 in favour of the applicant. The respondent, being aggrieved, filed a Notice of Appeal and subsequently an application for stay of execution pending appeal. 4.On 6th October 2022, this Court (Chemitei J) delivered a ruling on behalf of Ngugi J. granting stay of execution on condition that counsel for both parties jointly identify a property agent responsible for collecting rental income from the five specified properties, and that all rental income collected be shared on a ratio of 60:40 with the applicant getting the higher figure after deducting costs and expenses including the agent's fees. Pursuant to this order, the parties mutually agreed on Muigai Commercial Agencies as the collecting agent. 5.The applicant contends that the respondent has willfully disobeyed the said orders by personally collecting rent instead of allowing Muigai Commercial Agencies to do so, controlling the accounting process by providing her own breakdowns of income and expenses, deducting questionable and unverified expenses, denying the agent access to the premises and tenants, and depriving the applicant of his rightful 60% share of the rental income. 6.The respondent denies these allegations and contends that the agency collects rent, pays requisite bills, undertakes repairs, prepares monthly accounts, and distributes the net rental income strictly in accordance with court orders. She asserts that she has never personally collected rent nor interfered with the agency's mandate. The respondent further contends that this application is res judicata as the applicant filed a similar application on 10th July 2023 which was dismissed, and that the Court lacks jurisdiction to grant injunctive relief as the substantive suit has been concluded and is pending appeal. 7.The law regarding contempt of court is well settled. In Hadkinson v Hadkinson [1952] 2 All ER 567, the Court of Appeal of England 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." 8.In Abdi Satarhaji & another v Omar Ahmed & another [2018] KECA 204 (KLR) , the Court of Appeal reiterated the above principle, stating that "it is indisputable that obedience of court orders ensures that the rule of law, good order and due administration of justice is maintained." 9.In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) , the Court of Appeal emphasized the standard of proof required in contempt proceedings.The Court held:“In addition, the findings on the evidence have to be considered and tested, having regard to the degree of proof necessary in contempt proceedings."The Court further emphasized that contempt proceedings, being quasi-criminal in nature, require proof to a standard higher than on a balance of probabilities, though not beyond reasonable doubt. 10.In Samuel M.N. Mweru & others v National Land Commission & 2 others [2020] KEHC 9233 (KLR) , the Court reiterated the three elements of contempt: existence of a clear and unambiguous order, knowledge of the order by the alleged contemnor, and deliberate disobedience of the order. The Court stated:“.......In order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) the 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."The Court further emphasized the importance of obeying court orders, holding that:“It is the duty of the court not to condone deliberate disobedience of its orders nor waiver from its responsibility to deal decisively and firmly with contemnors. The court does not, and ought not be seen to make orders in vain; otherwise the court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people." 11.In Crown Paints (Kenya) Ltd v Dry Associates Ltd [2023] KECA 1383 (KLR) , the Court of Appeal laid down the principles for establishing contempt of court. The Court found that the appellant was fully aware of the order, that the order had not been fully complied with, and that no application had been sought to set aside, vary, or discharge the said order. The Court stated:“In answering the question as to whether the appellant's conduct was deliberate, the court drew the inference that since it participated in the proceedings leading to the order in issue, and did not seek to vary the orders, then the failure to comply with the orders was deliberate." 12.There is no dispute that the Court order dated 5th October 2022 and delivered on 6th October 2022 is clear and unambiguous. The Court ordered that the parties jointly identify a property agent to collect rental income from the five specified properties, and that the rental income be shared at 60:40 after deducting costs and expenses. The parties mutually agreed on Muigai Commercial Agencies. The Respondent acknowledges the existence of the order in her replying affidavit at paragraph 4. 13.The critical question is whether the Respondent has deliberately disobeyed the order. The Applicant has placed before this Court a letter from Muigai Commercial Agencies dated 30th September 2025 wherein the Agency confirms that the Respondent has never given them exclusive authority to collect rent and that she personally collects the rents. The Applicant has also placed before this Court a handwritten breakdown prepared by the Respondent showing that she controls the accounting process by determining who has paid, who has not paid, and what expenses are deducted. The Applicant has further demonstrated that he has received minimal or no rent, with his last payment being Kshs 8,398/- in April 2025. 14.The Respondent argues that the Agency's letters are hearsay and that the Agency has not sworn an affidavit. Under Section 35 of the Evidence Act (Cap 80 Laws of Kenya), documents prepared in the ordinary course of business are admissible without the need for the author to testify. The Agency's letter is a formal business communication made in the ordinary course of its business as the court-appointed agent. 15.Applying the principles established in the above authorities, I find that the Respondent had knowledge of the clear and unambiguous Court order dated 5th October 2022 and delivered on 6th October 2022, she failed to fully comply with the same by personally collecting rent and controlling the accounting process, and she has not sought any variation or discharge of the order. The Respondent's actions therefore constitute deliberate and willful disobedience of the Court order. I therefore find the Respondent guilty of contempt of court. 16.The Respondent contends that this application is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act because the Applicant filed a similar application on 10th July 2023 which was dismissed. The Respondent did not annex any document to her replying affidavit in support of this contention. However, the Applicant himself has annexed the ruling dismissing the said application as Exhibit NM II to his supporting affidavit, and I have considered the same. 17.The Applicant's application dated 10th July 2023 sought to remove Muigai Commercial Agencies as the collecting agent on allegations of rent collection irregularities. That application was dismissed because the Applicant had not provided specific evidence. The present application is fundamentally different as it seeks to punish the Respondent for contempt of the court order, restrain the Respondent from personally collecting rent, and enforce the court order. 18.In Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [1998] KECA 236 (KLR) , the Court of Appeal addressed the principles governing applications to set aside consent orders, but the broader principle applicable here is that the doctrine of res judicata cannot apply where there is new evidence or a different cause of action. 19.The 2023 application was an interlocutory application and its dismissal was not a final determination on the merits of the Respondent's conduct. Moreover, there is new evidence in this application: the Agency's letter dated 30th September 2025, the handwritten breakdown by the Respondent, and the Applicant's record of rent received. This new evidence was not available in 2023 because the Agency had not yet formally complained. I therefore find that the doctrine of res judicata does not apply to this application. 20.The Respondent contends that this Court lacks jurisdiction to grant injunctive relief because the substantive suit has been concluded. Section 3A of the Civil Procedure Act provides that nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 21.The injunction sought is not an interlocutory injunction under Order 40 Rule 1 of the Civil Procedure Rules but an enforcement mechanism to ensure compliance with the Court's own order dated 5th October 2022. In Hadkinson v Hadkinson (supra) , the Court held that a party who disobeys a court order cannot be heard until they have purged their contempt, demonstrating the Court's power to enforce its orders even after judgment. I therefore find that this Court has jurisdiction to grant the injunctive orders sought. 22.For the reasons set out hereinabove, I make the following orders:i.The Respondent, IMN, is hereby found guilty of contempt of Court for willfully disobeying the Court order dated 5th October 2022 and delivered on 6th October 2022.ii.The Respondent is hereby summoned to appear before this Court to show cause why she should not be committed to civil jail for contempt of Court on 3rd November, 2026.iii.The Respondent is hereby ordered to surrender all rents she has personally collected from the matrimonial properties to Muigai Commercial Agencies within 14 days of this ruling, and to provide a full account of all such collections.iv.An injunction is hereby issued restraining the Respondent, her agents, employees, or any person acting under her instructions, from collecting rent from the matrimonial properties, carrying out any repairs on the rental premises, or interfering in any way with the mandate of Muigai Commercial Agencies as the court-appointed collecting agent.v.The Respondent is hereby ordered to give full and unrestricted access to Muigai Commercial Agencies to conduct their business as the court-appointed collecting agent. In default, the OCS Gilgil Police Station is hereby mandated to oversee and facilitate the agents' accessibility to the premises and tenants.vi.Muigai Commercial Agencies is hereby ordered to submit a full account of all rents collected from the five properties to this Court within 30 days of this ruling, to continue collecting rent and disbursing the net proceeds at the ratio of 60:40 in favour of the Applicant after deducting verifiable costs and expenses, and to submit monthly accounts to both parties and to this Court.vii.The Respondent shall bear the costs of this application. DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF JULY, 2026J. K. SERGONJUDGEIn the presence of:Rutoh/Jamleck C/AMuriithi holding brief for Kisilah for Respondent