https://new.kenyalaw.org/akn/ke/judgment/keca/2026/989

Nyaruri v Onditi & another (Civil Appeal (Application) E195 of 2024) [2026] KECA 989 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 989 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E195 of 2024 JM Mativo, MB Kairaria & AI Hassan, JJA May 22, 2026 Between Abel Hayora Nyaruri Appellant and Jason Nyaruri Onditi 1st Respondent Land Registrar, Nakuru 2nd Respondent (Being an application for contempt of Court from the order of this Court (Warsame, Mativo & Gachoka, JJ. A.) dated 27th May 2025 in Nakuru ELC No. 44 of 2020 Environment and Land Case 44 of 2020 ) Ruling 1.Abel Hayora Nyaruri (the applicant) in his application dated 25th September 2025 seeks orders that:a.Jason Nyaruri Onditi (the 1st respondent) and N N Nyagena, the Land Registrar, Nakuru be cited for contempt for willfully disobeying the orders of this court issued on 27th May 2025.b.The respondents be cited for contempt for failing to disclose to this court material facts which misled this court to record a consent order on 27th May 2025.c.This court issues an order directing the Land Registrar, Nakuru to ensure that the records in the register for parcel number Njoro/Ngata Block 2/1613 (Kirobon A) prior to Gazette Notice dated 8th November 2024 do prevail.d.This court do issue an order restraining the respondents, their agents, servants or assigns from further dealings, transfers or alterations of ownership in respect of LR No. Njoro/Ngata Block 2/1613 (Kiboron A) pending hearing and final determination of the appeal.e.Any other or further orders this court may deem just and expedient in the circumstances.f.The costs of the application be provided. 2.The salient grounds urged in support of the application are that: (a) the applicant filed an application seeking stay of execution of the judgment delivered by the Environment and Land Court (ELC) on 23rd August 2024; (b) the said application was heard on 27th May 2025 by this court (Warsame, Mativo & Gachoka JJA) before whom a consent was recorded whose terms were that the parties would maintain the status quo, the property would not be transferred, the applicant would file the record of appeal within 60 days in default, the stay orders would lapse and the appeal would be heard on priority basis. 3.However, despite the said orders, a search conducted on 22nd August 2025 revealed that the property was transferred on 25th March 2025, a clear indication that ownership changed hands prior to 27th May 2025 when the consent was recorded a fact which was not disclosed to the court. The applicant is apprehensive that the land may be alienated, in which event, the appeal may be rendered nugatory. It’s the applicant’s contention that the respondents have deliberately disobeyed court orders. The applicant also averred that the 1st respondent’s agent one Beatrice Moraa registered a caution against the said title, thereby, interfering with the status quo. 4.In response to the application, the 1st respondent in his replying affidavit dated 8th October 2025 maintained that pursuant to the judgment delivered on 23rd August 2024 by Ombwayo, J, he visited the Lands Registry at Nakuru in a bid to implement the judgment and since there were no subsisting stay orders, he obtained the certificate of title prior to the recording of the said consent. Therefore, there was no willful disobedience of this court’s orders and he has no intention of transferring the property. Lastly, this application has been brought in bad faith. 5.The 2nd respondent neither filed a reply to the application nor did he participate during the hearing of the application. The applicant filed a further affidavit dated 24th November 2025 basically maintaining that the 1st respondent is in contempt of the said consent orders. 6.When the application came up for virtual hearing before us on 4th May 2026, learned counsel Dr. Khaminwa appeared for the applicant while learned counsel Ms Njogu appeared for the 1st respondent. Dr. Khaminwa adopted his written submissions dated 24th November 2025. Likewise, Ms Njogu adopted her written submissions dated 12th November 2025. 7.The nub of Dr. Khaminwa’s submissions is that the respondents have with impunity disobeyed the orders issued on 27th May 2025 by transferring the suit land to the 1st respondent. He cited Shivabhai Nathabhai v Manibhai Nathibahi Patel [1959] EA 907 to urge that the Court has a duty to preserve property the subject of litigation. He also cited section 4 (1) (a) of the Contempt of Court Act which defines civil contempt to include willful disobedience of any judgment, decree, direction, order or other process of a court or willful breach of undertaking given in court. (It is important for us to mention that this Act was declared unconstitutional by the High Court in Kenya Human Rights Commission v Attorney General & Ano. [2018] eKLR. To our mind, this decision has never been overturned by a higher court). Counsel maintained that the respondents have willfully disobeyed the consent orders and stressed that this court is constitutionally mandated to uphold justice. He urged us to allow the application. 8.On behalf of the 1st respondent, learned counsel Ms Njogu maintained that the applicant’s title was cancelled prior to the issuance of the consent order and after the issuance of the order, there have not been any dealings on the property and the 1st respondent has maintained the status quo as it was as at the time the orders were issued. Counsel cited this court’s decision in Mukuha v Gashwe & 14 Others (Civil Application No E064 of 2023) [2023] KECA 1482 (KLR) to urge that a deliberate disregard is not enough since the non- complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt, therefore, good faith avoids the infraction. Counsel maintained that in absence of prove of deliberate disregard of court orders, this application is devoid of merit. 9.There is no dispute that a consent was recorded on 27th May 2025. The terms of the consent are not in dispute. There is a clear admission by the 1st respondent that as at the time the consent was recorded, the applicant’s title had been cancelled.The cancellation was done on 25th March 2025. The 1st respondent exhibited Kenya Gazette Notices to support the cancellation. There is no dispute that a caution was thereafter registered against the said title. The germane question which the 1st respondent avoided both in his replying affidavit and his submissions is whether he was obligated to disclose to this court that the applicant’s title had been cancelled at the time of recording the consent. 10.It is an established principle that a litigant who secures or records a consent order preserving the status quo of a disputed property while deliberately concealing that the property has already changed hands is guilty of both material non-disclosure (suppression of material facts) and civil/criminal contempt of court. The landmark Supreme Court of India decision in Kusha Duruka v The State of Odisha, (SCC) (2024) 4 SCC 432, decided on 19th January 2024 views this conduct not merely as a civil lapse between private parties but as a deliberate fraud played upon the Court and a direct obstruction to the administration of justice. 11.If the primary object of the administration of justice as was highlighted in the celebrated case of Kensington Income Tax Commissioners, [1917] 1 KB 486, 86 LJKB 257, 116 LT 136 (CA) is kept in mind,“an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands." Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.”(See the Supreme Court of India decision in K.D. Sharma v Steel Authority of India Limited and Others [2008] 12 SCC 481). 12.The Supreme Court of India in Chandra Shashi v Anil Kumar Verma [1995] 1 SCC 421 faced with a situation where an attempt was made to deceive the court and interfere with the administration of justice stated:“The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also, to enable it to administer justice fairly and to the satisfaction of all concerned.Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.” 13.It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party is expected to assist the court fairly in carrying out its function to administer justice. A consent order is not merely a private contract; once incorporated into a judicial decree, it carries the full weight of a court order. Suppressing the fact that the property has already changed hands is treated as deliberate dishonesty designed to mislead the court. Litigants have an absolute duty of good faith when presenting orders to the court. 14.We reiterate that there is no doubt that by the time the consent was recorded, the 1st respondent was fully aware that he had caused the applicant’s title to be cancelled. He had a duty to disclose this fact to the court at the time the consent was recorded. This omission as earlier cited cases suggest, constitutes contempt of court which cannot be condoned by this Court. Accordingly, we find that the application dated 25th September 2025 is merited and issue the following orders:a.Jason Nyaruri Onditi (the 1st respondent) is guilty of contempt for failing to disclose to this court material facts prior to recording the consent dated 27th May 2025.b.The 1st respondent or his agents is hereby restrained from transferring, alienating or in any manner altering of ownership in respect of LR No. Njoro/Ngata Block 2/1613 (Kiboron A) pending hearing and final determination of this appeal.c.The applicant shall appear before this court on a date to be fixed by the parties to show cause why he should not be punished for contempt of court.d.The 1st respondent shall pay the costs of this application to the applicant. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.J. MATIVO................................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................................JUDGE OF APPEALAHMED ISSACK................................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR