https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8583

Ogada & another v Osser & 3 others (Civil Suit E022 of 2020) [2026] KEHC 8583 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8583 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit E022 of 2020 J Ngaah, J June 19, 2026 Between Festus Ochol Ogada 1st Applicant Hans Bruno Huse 2nd Applicant and Ronny Patrick Herbert Osser 1st Respondent Jeanine Notale Boehlig 2nd Respondent Titus Muntoki t/a Munyoki Maheli & Company Advocates 3rd Respondent John Njoroge 4th Respondent Ruling 1.Before this Honourable Court is a motion dated 6 May 2024 in which the applicant has primarily prayed for the following orders:“2.That the Respondents be committed to Civil jail for such period as this Honourable court may deem fit and just in that the Respondents have disobeyed the orders made herein by this Honourable court on 27th April, 2023 and 18th April, 2024.3.That the Respondents be compelled to account for the monies collected since the order was first granted on 27th April, 2023, to date.4.That the Regional Police Commander, Coast Region, assisted by OCPD, Kisauni Division, OCS, Bamburi Police Station and the in-charge Tourist Police, Bamburi to effect the arrest and execution of the orders.5.That the attending parties be denied hearing until they purge the contempt. “ The applicants also seek the order for costs. 2.The application is expressed to be brought under Section 5 of the Judicature Act, Cap 8, Laws of Kenya, Order 52 Rule2 (2) of the Supreme Court of England 1965, Sections IA, 18 & 3A of the Civil Procedure Act Cap 21. It is supported by the affidavit of Festus Ochol Ogada, who has sworn that on 27 April, 2023 granted orders which, among other things, provided that certain properties stated in the order were to be managed by an agent. The advocates representing the respective parties were also ordered to open joint bank accounts in which the proceeds, apparently from the properties, were to be deposited. 3.The 3rd respondent is said to have declined to sign the documents necessary to open the joint bank account. On 18 April 2024, the court gave further orders appointing Mr Peter Huthu as the managing agent for the properties. However, the respondents are said to have made it impossible for the agent to take over the management of the properties. In particular, the respondents are alleged to have stationed security guards to protect the properties and prevent Huthu from taking over their management. Huthu also swore an affidavit confirming these facts. It is against the forgoing background that the applicants now seek that the respondents be cited for contempt. 4.In response to the applicant’s application, the respondents filed grounds of objection and replying affidavits. They have objected to the application on the grounds that the court order they are alleged to be in contempt of was not couched in clear and unambiguous terms; in particular, the order is said to have referred to parcels of land unknown to the respondents, and hence, the latter are not bound by the order. They have also pleaded that they neither had knowledge nor notice of the order. In these circumstances, the respondents have denied breaching the order, and their actions or omissions cannot amount to such a breach. 5.Mr Ronny Patric Herbert Oser, who is named as the 1st respondent in this application, swore a replying affidavit opposing the application. He has stated in his affidavit that he is one of the directors of Hanos (K) Limited jointly with his sister, Jeanine Notale Boehlig; they both reside in Germany. Oser has denied that either of them was served with the court order in issue. 6.In any event, the order is said to refer to land Parcels No. 1669/18, CR NO. 13796/7 and sub-division 2124 (Original Number 1669/18, CR No. 13796/7, which are unknown to them. Their hotel and restaurant are said to be built on Parcel No. 2108/I/MN, CR. 15991, and sub-division 2124/J/MN, CR No. 15992. 7.Due to errors on the face of the order, he instructed his previous advocates, M/S Munyoki Maheli & Company Advocates, to file an application for review, but, vide a ruling delivered on 18 April 2024, the application was dismissed. Thereafter, he and his sister, together with their company, applied for stay of execution of the orders of 27 April 2023 and 18 April 2024 in the Court of Appeal, Civil Application No. E052 of 2024. 8.The applicants are alleged to be claiming one share of a company that belonged to Oser’s deceased father, who is alleged to have bought back the share from the applicants. According to Mr Oser, the intention of the applicants is to forcefully take over their business through a proxy whom they believe is Peter Huthu. 9.Mr. Titus Titus Munywoki swore a replying affidavit opposing the application. According to him, the orders granted by this Honourable Court on 27 April 2023 and 18 April 2024 were made per incuriam, as they were contrary to the orders of the Court of Appeal in Civil Application No. 59 of 2019 on 7 February 2020. 10.He has also sworn that Hanos Kenya Limited is the registered proprietor of land parcels No 2108/1/MN CR15991 and Subdivision 2124/1/MN CR 15992 (hereinafter “the suit properties”), where a hotel and makeshift bar, trading under the name Papillon Bar and Restaurant, stand. 11.According to Munywoki, the suit properties were the subject of the Court of Appeal proceedings; he learned that there were injunctive orders issued against Hanos Kenya Limited with respect to the suit properties when he sought further instructions from his clients on the opening of a joint account in compliance with the orders of this Honourable Court. 12.Mr Munywoki was also instructed by his clients that Hanos Kenya Limited was not the registered proprietor of the suit properties and that efforts to trace the properties' ownership records had proved futile. 13.In the face of these revelations, Mr Munywoki filed an application for review, seeking to vary and set aside the said orders dated 16 November 2025; the applicant sought to correct what it believed were errors on the face of the record and, in the same breath, sought orders for stay. 14.In his ruling of 18 April, 2024, Magare, J., is said to have taken cognisance of the absurdity of the orders the court had issued, which purportedly overruled the Court of Appeal orders; however, the learned judge stated that it could not sit on appeal of its own decision, and, therefore, the appropriate course was to file an appeal in the Court of Appeal. 15.As far as the question of opening accounts is concerned, Mr Munywoki has sworn that he had no authorisation or mandate from his clients to open bank accounts for the purpose of collecting rental income from the rental premises stated in the order and alleged to be situated on the suit properties. According to him, his clients had no interest in those properties. 16.John Njoroge Gathwe swore a replying affidavit in which he stated that he is “an employee of Papillon Bar and Restaurant, which is owned by Hanos (K) Limited as a manager”. He confirmed that on 13 July 2024, the applicant’s advocate, Mr Ngeno Birir, accompanied by police officers, came to the business premises from which he operates to serve a court order. He took the order and forwarded it to the company’s previous advocate, Titus Munyoki, who informed him that the order referred to Parcels No. 1669/18, CR NO. 13796/7 and sub-division 2124 (Original Number 1669/18, CR No. 13796/7), yet the hotel and the restaurant are on parcels No. 2108/1/MN, CR No. 15991, and sub-division 2124/1/MN, CR No. 15992. Because of what he believed were anomalies on the face of the order, Gathwe has sworn that the order is ambiguous and unenforceable. 17.It has been held that contempt is conduct “calculated to interfere with the administration of justice” and is treated as contempt where there is a real (not merely remote) risk of prejudice to the due administration of justice. (Re West — Jul 17, 2014) (D.P.P v. Independent Newspapers Ireland Ltd. & Ors — Mar 7, 2003).- 18.Contempt conduct comes in various forms; besides contempt in the face of court (or in facie curiae), disobedience of a court order or judgment is the factual foundation for contempt of court proceedings against the contemnor. Contempt law, therefore, aims to protect the administration of justice. 19.Among other prerequisites, it is necessary that before one is held to be in contempt, it must be demonstrated that he was aware of the order or judgment he is alleged to be in contempt of. Proof of service of the order or judgment is necessary unless, for reasons to be stated, the court dispenses with service of the order or judgment on the alleged contemnor. 20.One other condition is a warning to the alleged contemnor of the penal consequences that may ensue if the order is not complied with. In this regard, there has to be permanently displayed on the front copy of the judgment or order served a warning to the person required to do or not to do the act in question that disobedience of the order would be contempt of court punishable by imprisonment, a fine or sequestration of assets (in case of a company). It has been held that without this display, the judgment or order may not be enforced unless it is an undertaking contained in a judgment or order. 21.The need to comply with these conditions, amongst other conditions, is a question that has been settled by the Court of Appeal in its previous decisions where this question has arisen. 22.In the case of Nyamodi Ochieng Nyamogo & Another versus Kenya Posts & Telecommunications Corporation (1994) eKLR, for instance, the twin issues of the necessity for personal service of both the order and the application for contempt and the endorsement on the face of the order with the penal notice were discussed. As far as service is concerned, the Court of Appeal noted as follows:“The law on the question of service of order 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 …” 23.The court further noted:“Keeping the importance of personal service of the order in mind we now take a look at the aforesaid two copies of the order both of which bear the stamp of Wetangula & Co Advocates, in acknowledgement of receipt of the said orders. Service on Wetangula & Co does not constitute personal service on any of the three officers. It is a personal service on each one of them that is required to be effected by law. Service of the two orders on Wetangula & Co, Advocates, on 25th October, 1993, and 1st November, 1993, therefore, is a wasted effort.” 24.The court described personal service as “an elementary but mandatory procedural rule which in contempt proceedings has (been) prescribed “personal service”. 25.And on the need for endorsement of the order with the requisite warning of penal consequences, the court stated as follows:“Mr Lakha pointed out other flaws to which we will now turn our attention. He referred to the order and also to the application itself and pointed out the absence of a notice in the form of an endorsement thereon of penal consequences. It is not disputed that the copies of the order alleged to have been served on the three alleged contemnors and handed in by Mr Nowrojee during the hearing (instead of having been annexed to the application) do not bear any such endorsement of penal consequence. Section 5(1) of the Judicature Act has given this Court the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England. In England rule 5 of order 45 R S C 1982 Ed, governs the method of the enforcement by the Court of its judgments or orders in circumstances amounting to contempt of court (p766). Order 45/7 deals with matters relating to “Service of copy of judgment, etc, pre-requisite to enforcement under rule 5”. The relevant procedural obligation is succinctly stated in order 45 rule 7/5 of the RSC 1982 Ed as follows:“It is a necessary condition for the enforcement of a judgment or order under rule 5 by way of sequestration or committal, that the copy of the judgment or order served under this rule should have the requisite penal notice indorsed thereon.”“And a couple of paragraphs later is given the form that an endorsement is required to take, in the following words in the case of a judgment or order requiring a person to abstain from doing an act:“If you, the within named A B disobey this judgment (or order) you will be liable to process of execution for the purpose of compelling you to obey the same.”“A similar form with suitable alterations is given in the case of an order against a corporation.This Court in Court of Appeal Civil Appeal No 95/1988 Mwangi H C Wang’ondu v Nairobi City Commission (UR) confirmed the mandatory nature of the requirement of endorsement of notice of penal consequence on the order in the following words:“In the present case, according to the affidavit of the appellant sworn on 26th January, 1988, in support of his application, the order alleged to have been disobeyed by the respondent was served on the respondent on 31st August, 1987, and a copy of that order which was annexed to the affidavit did not carry a notice of the penal consequences of disobedience as required by the Rules. It is clear from this that the appellant did not comply with the mandatory provisions of section 5(1) of the Judicature Act with the result that his application was incompetent. It must follow that there was no valid application for contempt of court before the judge.” 26.The court concluded its discussion on this point by stating as follows:“As the copies of the orders produced before us are not so endorsed as required under the mandatory provisions of section 5(1) of the Judicature Act (cap 8) this application is incompetent and deserves to be dismissed on this account also.” 27.In cases of alleged contempt of a judgment or order, Rule 85.5 of the Civil Procedure (Amendment No. 3) Rules 2020 of England, which applies to contempt of court proceedings in this country by dint of section 5 of the Judicature Act, cap. 8, sets out the threshold for contempt of court proceedings which include the requirement that the order or judgment be served and be endorsed with the requisite notice. It reads as follows:81.4. — (1)Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.(2)A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);(b)the date and terms of any order allegedly breached or disobeyed;(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;(e)confirmation that any order allegedly breached or disobeyed included a penal notice;(f)the date and terms of any undertaking allegedly breached;(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;(i)that the defendant has the right to be legally represented in the contempt proceedings;(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;(k)that the defendant may be entitled to the services of an interpreter;(l)that the defendant is entitled to a reasonable time to prepare for the hearing;(m)that the defendant is entitled but not obliged to give written and oral evidence in their defence;(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public. (Emphasis added). 28.Turning back to the applicant’s application, the order that the respondents are alleged to be in contempt of was endorsed with the penal notice. But the point of divergence between the applicants and the respondents concerns the service of the order; save for the 3rd respondent, the rest of the respondents have denied being served with the order. 29.To resolve this contention, I turn to the affidavit of service sworn by one Shem O. Abudho, who swore that he served the order in question. In that affidavit sworn on 12 May 2023, Abudho swore, in part, as follows:“2.That on 11th May, 2023 I received from M/S Birir & Company Advocates an order dated 27th April, 2023 with instructions to serve the same upon Selina Egesa & Company Advocates, Munyoki Maheli and Company Advocates and Registrar of Companies.3.That on the same day at around 2:30 PM I proceeded opposite Mombasa Law Courts and served the document to Mr Munyoki Advocate who accepted service by stamping and signing in front of my copy. I then proceeded Motorwalla Building Jommo Kenyatta Avenue and served the said document to Madam Egesa Advocate who accepted service by stamping and signing in front of my copy.4.That on 12th May 2023 I served the register of companies through email address kevin.okumu@brs.go.ke which email confirmed to have been successfully delivered.5.I return herewith the said documents duly served.” 30.The order alleged to have been served and stamped is not exhibited to the affidavit of service and neither was it filed in court. There is, therefore, no proof that the order was served and stamped on its face as alleged. There is also no proof of any email on which the order was attached having been sent to the Registrar of Companies. It has not been suggested that any order was served on Hanos (K) Limited or any of its directors. 31.Further still, there is no evidence that the second order of 18 April 2024 was served; at least there is no affidavit of service to that effect. As a matter of fact, it appears the order was never extracted. 32.In the face of these omissions on the part of the applicant, his application for contempt falls short of the required threshold. 33.It must be remembered that it is not enough for the order to be served upon the alleged contemnors advocates. In Nyamodi Ochieng Nyamogo & Another versus Kenya Posts & Telecommunications Corporation (supra) where the order, the subject of the contempt proceedings, was served, not on the alleged contemnors, but on their advocates. The Court said of this service, thus:“Service on Wetangula & Co does not constitute personal service on any of the three officers. It is a personal service on each one of them that is required to be effected by law. Service of the two orders on Wetangula & Co, Advocates, on 25th October, 1993, and 1st November, 1993, therefore, is a wasted effort.” 34.In Re Bramblevale Limited [1970] Ch. 128, Whelan J. said at paragraph 184 that 'an individual cannot be held guilty of contempt for infringing an order of the Court which he/she has not been validly served.' And in B [A Minor] v Child and Family Agency (Approved) [2024] IEHC 236, the court held as follows:“Anyone accused of contempt does face the possibility of significant sanctions if found guilty of contempt of Court - and is entitled to have the correct procedure followed. The fact that a person or body failing to give effect to a Court order is aware of the potential consequences does not mean that he, she or it is not entitled to the same procedural safeguards and requirements as a person entirely ignorant of the potential consequences. Put another way, everyone is entitled to have the correct procedure followed.” 35.The other question raised by the respondents about the order concerns what I understand to be the lack of specificity in its terms. According to the English Civil Procedure (Amendment No. 3) Rules 2020, the clarity of the order is an essential prerequisite. Under rules 81.4(2)(a) (f) and (h) thereof, the nature of the alleged contempt and the date and terms of any order allegedly breached or disobeyed must be given. A summary of the facts alleged to constitute the contempt “must also be set out numerically in chronological order”. 36.Specificity of the order in its terms and the need for clarity of the contemnor’s obligations must not be confused with the validity of an order. This is because it is not a defence to a contemnor that, in his opinion, the order he is alleged to be in contempt of is invalid. In HM Attorney General v. Yaxley-Lennon (Rev 1) [2019] EWHC 1791 (QB) it was held:“49.It is a fundamental principle of long standing that orders of the court must be obeyed whilst they remain in force; disobedience to an order will therefore amount to a breach, capable of amounting to contempt, even if on later examination it proves to have been wrongly made: see Woodward v Earl Lincoln (1674) 3 Swan App 626, 36 ER 1000, and other authorities cited in Arlidge, Eady & Smith at 7-173 and 9-230 to 9-235.” 37.The order of 27 April 2023 was couched as follows:This Mattercoming up for delivery of Ruling dated 27th April, 2023 before Hon. Mr. Justice M.D. Kizito AND in the presence of Learned Counsels Miss Egesa for the 1st Defendant/Respondent, Mr. Birir for the Applicant, Mr. Munyoki for 1st 2nd and 3rd Respondents and No appearance for 5th Respondent;It Is Hereby Ordered:(a)The company's Assets, especially rental premises on various parcels formerly part of 1669/18 CR 13796/7 and sub division 2124 (original Number 1669/18 CR 13796/7 be preserved through: -(1)Appointment of an agent to manage the said properties pending the hearing and determination of this suit.(2)The advocates Representing the parties do open an escrow account, wherein the rent money should be deposited.(3)Only a fraction not exceeding 10% shall be withdrawn for maintenance of the property and paying the Estate agents, and managing the account.(4)There shall be no further changes in shareholding structures till the suit is determined.(5)No money other than aforesaid shall be given to any of the parties.(6)The agents shall only issue instructions issued by the court or jointly through the advocates now on record.(7)Meanwhile pending appointment of agents, by the advocates on record, the rent received from the company premises be deposited in court.(8)The matter be fast tracked.(9)The plaintiffs to file referenced statements within 21 days to together with all documents.(10)The Respondents to file referenced statements and witness statements within 30 days from today.(11)The parties to fix the main suit of hearing and after the Ruling hereof.(12)Costs in the cause. 38.As earlier noted the order made on 18 April 2024 was not extracted and if it was, then it was not exhibited on any of the affidavits filed in these contempt proceedings. However, the deposition of the ruling delivered by Magare, J. on the material date is in the following terms:“1.The upshot of the foregoing is that I make the following orders in respect of all the applications preliminary objection and give direction for hearing. Any party aggrieved should be at liberty subject to where leave is required sought and granted Appeal.2.The matter shall now proceed for hearing. The Defence cases shall stand closed on 30/6/2024, whether or not parties had testified.3.The Application dated 2/11/2023 is allowed in the following terms;4.Peter Huthu is appointed as an official agent for rent collection for the orders given in the Ruling dated 27/4/2023.5.Peter Huthu do take charge forthwith and comply with the orders of 27/4/2023. His charges shall be borne out of the said funds.1.Each party to bear their cost for the said Application.2.The Application dated 12/7/2023 is belated as the plaintiff has closed his case. The same is dismissed with costs.3.The Application dated 16/11/2023 is dismissed with costs.4.The notice of Preliminary Objection dated 14/7/2023 is dismissed with cost of Kshs. 30,000/= payable within 30 days.5.The matter shall proceed for full Defence hearing on 25th, 26th and 27th June, 2024.6.The defence cases shall stand closed on 30/6/2024.” 39.Going by the provisions of the English Civil Procedure (Amendment No. 3) Rules 2020, to which reference has been made, the burden upon the applicant was to demonstrate to the satisfaction of the court the nature of the respondents’ contempt and in light of the terms in which the order was couched. Based on the terms of the order, the applicant was bound to give a summary of the facts alleged to constitute the contempt, set out numerically in chronological order. Even if it were assumed that the order was served, I am not satisfied that the applicants have discharged this particular burden. 40.For reasons I have given, I find no merit in the applicants’ application. It is hereby dismissed. Costs will abide the outcome of the suit. SIGNED, DATED AND DELIVERED ON 19 JUNE 2026NGAAH JAIRUSJUDGE