https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/808

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCELC NO. 6 OF 2023** **JOHN ABURA OUCHO..........................................................PLAINTIFF/APPLICANT** **VERSUS** **J.K. MWARANDU & CO. ADVOCATES.......................1ST DEFENDANT/RESPONDENT** **TOM ODHIAMBO ONYANGO................................2ND DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Plaintiff/Applicant’s Notice of Motion dated 20th April 2026 seeking, principally, orders that the Defendants/Respondents be committed to civil jail for alleged disobedience of the orders issued by this Court on 28th November 2024. The Applicant further seeks committal of the officer commanding Shelly Beach Police Station for allegedly failing to enforce compliance with the said orders, together with costs of the application. 2. The application is supported by the affidavit of John Abura Oucho. It is opposed through the Replying Affidavit of the 2nd Respondent, Tom Odhiambo Onyango, sworn on 20th April 2026. The Applicant subsequently filed a Further Affidavit and both sides filed written submissions. 3. I have considered the Notice of Motion, the respective affidavits, all the annexures placed before the Court and the parties’ written submissions. The Applicant’s case 1. The Applicant’s case is founded upon the orders issued on 28th November 2024. The order restrained the Respondents, whether by themselves, their agents or servants, from trespassing upon, wasting, constructing on, advertising for sale or otherwise interfering or dealing with the Plaintiff’s property described as Plot No. MN/576 in Likoni Mrima measuring 100 feet by 115 feet, pending hearing and determination of the matter and the suit. The officer commanding Shelly Beach Police Station was further directed to enforce compliance with the orders. The order carried a penal notice. 2. The Applicant contends that the said orders were served upon the Respondents but were nevertheless disobeyed. According to him, the Respondents subsequently evicted him from the suit premises under the supervision of the officer commanding Shelly Beach Police Station, notwithstanding that the police had been expressly directed to enforce compliance with the injunction. 3. In support of service, the Applicant relies upon an Affidavit of Service sworn by Kevin Ngoli Shisanya on 9th December 2024. The process server deposed that on 4th December 2024 he served the court order at Shelly Beach Police Station and that on 6th December 2024 he proceeded to the offices of J.K. Mwarandu Advocates at Karimi House, Moi Avenue, where service was accepted by a secretary and his copy stamped. 4. In his Further Affidavit, the Applicant disputes the Respondents’ contention that Plot No. MN/576 does not exist. He relies, among other things, upon a letter dated 12th October 2022 authored by J.K. Mwarandu & Company Advocates and addressed to tenants at Likoni House. The letter bore the subject “Trespass on Plot No. 576”, stated that the firm acted for Patrick Omondi Opiyo, and informed the tenants that its client had taken possession of the property known as Plot No. 576. 5. The Applicant further relies upon Replying Affidavits sworn by both Respondents in August 2023 in which they themselves referred to the disputed property as Plot No. MN/576 in Likoni Mrima area. The Applicant therefore submits that the Respondents cannot now deny the existence of a property which they previously acknowledged in their own correspondence and sworn affidavits. 6. The Applicant submits that the Respondents were aware of the orders; that the 1st Respondent represented the 2nd Respondent; that service upon the advocate constituted notice to the client; and that personal service is not indispensable where knowledge of the order has otherwise been demonstrated. 7. His ultimate position is that the Respondents knowingly and deliberately acted in breach of the injunction by evicting him from the property and ought therefore to be punished for contempt. The Respondents’ case 1. The 2nd Respondent admits that the Court issued orders referring to property known as MN/576 – Likoni, Mombasa, but takes the position that no property bearing that description exists. He therefore denies that any disobedience of the order occurred. 2. He further denies personal service of the order and points out that the process server did not state that he personally served Tom Odhiambo Onyango. 3. Of particular significance, the 2nd Respondent does not deny that an eviction occurred. His case is that the eviction arose from an entirely separate matter, namely MCCC No. 2921 of 2009 – John Abura Oucho v Patrick Omondi Opiyo, relating to property known as MOMBASA/LIKONI/1960. He states that the earlier proceedings culminated in orders vesting the property in Patrick Omondi Opiyo and that warrants of execution and possession were lawfully executed. 4. The Respondents have produced a warrant directing the Court Bailiff/Sure Auctioneers, assisted by the OCS Shelly Beach, to place Patrick Omondi Opiyo in possession of property identified in the schedule as Plot No. Mombasa/Likoni/1960. 5. They have also produced a Certificate of Lease relating to MOMBASA/LIKONI/1960, showing Patrick Omondi Opiyo as the registered proprietor of the leasehold interest, the property measuring approximately 0.1169 hectares, for a term of 99 years from 14th June 2017. The Certificate of Lease was issued on 17th October 2023. 6. In their written submissions, the Respondents additionally challenge the Affidavit of Service on the basis that the alleged service upon the 1st Respondent took place at Karimi House, which they allege had been demolished in 2020, while their offices were situated at Nukem Trust House. They also contend that the affidavit does not establish that Kevin Ngoli Shisanya was an authorised court process server. 7. Their position is that the Applicant has not demonstrated what precise prohibited act the Respondents committed and has failed to satisfy the elevated standard applicable to contempt proceedings. They accordingly pray that the application be dismissed with costs. **Issues for determination** 1. Having considered the material before me, the issues that arise for determination are: 2. Whether there existed a clear, valid and binding order capable of enforcement through contempt proceedings; 3. Whether the Respondents had knowledge or notice of the said order; 4. Whether the Applicant has proved that the Respondents deliberately acted in breach of the order; 5. Whether contempt has been established against the officer commanding Shelly Beach Police Station; and 6. What orders should issue. The law on contempt 1. I observe at the outset that the application cites provisions of the Contempt of Court Act, 2016. That Act was subsequently declared unconstitutional in Kenya Human Rights Commission v Attorney General; Law Society of Kenya (Interested Party). That, however, does not leave this Court without jurisdiction. Section 10 of the Magistrates’ Courts Act, 2015 expressly empowers a Magistrates’ Court to punish contempt, including wilful disobedience of its orders or directions. 2. The jurisdiction to punish contempt is indispensable to the administration of justice. Court orders are not suggestions and a party does not acquire a licence to disregard an order merely because that party considers the order irregular, mistaken or inconvenient. Until varied, reviewed, discharged or set aside, an order of a competent court is to be obeyed. 3. Equally, however, contempt proceedings are coercive and punitive and may lead to loss of liberty. The Court must therefore insist upon strict proof of the elements constituting contempt. 4. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), the Court of Appeal held that the applicable standard is higher than proof on a balance of probabilities, though not identical to the criminal standard of proof beyond reasonable doubt. 5. Similarly, Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR) identifies the essential matters as a clear and binding order, knowledge or proper notice of its terms, breach of those terms, and deliberate conduct by the alleged contemnor. The decision emphasises that because liberty may be affected, committal must be approached with great care. 6. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the Court of Appeal recognised that actual knowledge of an order may, depending on the circumstances, dispense with strict insistence upon personal service. Knowledge may therefore be established otherwise than by physical personal service alone. Whether there was a clear, valid and binding order 1. There is no serious dispute that this Court issued an injunction on 28th November 2024. I have examined the order. It prohibited the Respondents from trespassing on, wasting, constructing on, advertising for sale or otherwise interfering or dealing with the Plaintiff’s property described as Plot No. MN/576 in Likoni Mrima measuring 100 feet by 115 feet. It also directed the officer commanding Shelly Beach Police Station to enforce compliance. 2. In my view, the acts prohibited by the order were themselves stated in clear terms. The Respondents knew precisely what conduct they were restrained from undertaking. 3. The Respondents nevertheless submit that the order was ambiguous because the property identified as MN/576 does not exist and because the property with which they say the parties were actually dealing is Mombasa/Likoni/1960. 4. That argument presents some difficulty for the Respondents. Their own earlier documents demonstrate that they themselves used the description Plot No. 576 or MN/576. 5. In the letter dated 12th October 2022, J.K. Mwarandu & Company Advocates informed tenants that Patrick Omondi Opiyo had taken possession of “all that property known as Plot No. 576.” 6. More significantly, in the Replying Affidavit sworn in August 2023, Tom Odhiambo Onyango did not contend that MN/576 was fictitious. Rather, he expressly stated that the Applicant was not the lawful owner of “Plot No. MN/576 in Likoni Mrima area”, asserting instead that the property belonged to Patrick Omondi Opiyo. 7. Joseph Karisa Mwarandu adopted substantially the same description in the 1st Respondent’s own Replying Affidavit. 8. It is therefore difficult to accept, for purposes of these contempt proceedings, the sweeping proposition that the injunction is incapable of comprehension merely because the Respondents now deny the existence of MN/576. 9. In any event, the Respondents did not apply to review, vary or set aside the order on account of an erroneous property description. The order therefore remained extant and binding. 10. I consequently find that the Applicant has established the first element: there existed a valid and subsisting order whose prohibitory terms were capable of being understood. Whether the Respondents had knowledge of the order 1. The next question is knowledge. The Affidavit of Service raises a genuine controversy. The process server states that he effected service upon the offices of the 1st Respondent at Karimi House on 6th December 2024. The Respondents contend that Karimi House had been demolished in 2020 and that the firm operated from Nukem Trust House. 2. No independent evidence concerning the alleged demolition of Karimi House has been placed before the Court. Conversely, the process server was not called for cross-examination on his affidavit. I therefore decline to determine that collateral factual controversy conclusively on the material presently before me. 3. What is nevertheless apparent is that the 1st Respondent has throughout acted as counsel for the 2nd Respondent in these proceedings. The court record and the previous affidavits confirm active participation in litigation concerning the very injunction sought by the Applicant. 4. Knowledge, for purposes of contempt, is not invariably synonymous with proof of personal physical service. The authority in Shimmers Plaza makes that position clear. 5. On the totality of the record, I am satisfied that the Respondents had sufficient knowledge of the existence and substance of the orders of 28th November 2024. I therefore find the element of knowledge established. Whether breach and deliberate disobedience have been proved 1. This is the decisive issue. The Applicant says that after the injunction was issued, the Respondents evicted him from the suit property. 2. The 2nd Respondent admits that an eviction occurred but says that it was undertaken pursuant to lawful warrants issued in MCCC No. 2921 of 2009, relating to Mombasa/Likoni/1960, and not the property protected by the injunction in this suit. 3. The documents produced by the Respondents confirm that there were indeed execution proceedings in Civil Suit No. 2921 of 2009. They include a warrant directing a court bailiff, assisted by the OCS Shelly Beach, to give Patrick Omondi Opiyo possession of land described as Mombasa/Likoni/1960. 4. A Certificate of Lease has equally been produced for Mombasa/Likoni/1960 in the name of Patrick Omondi Opiyo. 5. On the other hand, the Respondents’ own earlier correspondence and affidavits repeatedly used the descriptions Plot No. 576 and MN/576 when referring to land which they associated with Patrick Omondi Opiyo. 6. That history plainly raises a legitimate question whether Plot No. 576/MN/576 and Mombasa/Likoni/1960 are descriptions which the parties have at different times used in relation to the same physical premises. 7. However, a legitimate question is not proof. The Court has not been supplied with a survey plan, cadastral map, mutation, registry correspondence, valuation report, surveyor’s affidavit or other cogent evidence establishing that MN/576 and Mombasa/Likoni/1960 are one and the same parcel of land. 8. Neither has the Applicant supplied independent evidence sufficiently identifying the precise premises from which he was allegedly evicted and connecting those premises to the land protected by the injunction. 9. The Court cannot determine that crucial question merely by drawing an inference from the parties’ inconsistent use of property descriptions, particularly in proceedings which may result in imprisonment. 10. The Respondents’ shifting position concerning MN/576 is undoubtedly troubling. Their assertion in 2026 that MN/576 does not exist sits uneasily with their own earlier correspondence and sworn affidavits referring to precisely that property. 11. Those contradictions may be relevant when the substantive dispute over the land is ultimately heard. They do not, however, relieve the Applicant of the obligation to prove the particular act constituting contempt to the elevated standard required in committal proceedings. 12. There is another evidential difficulty. The Supporting Affidavit alleges that the Respondents “have since evicted” the Applicant but does not provide a clear date of the alleged eviction or sufficient particulars of the act said to constitute the breach. 13. That omission assumes particular significance because the record contains several warrants and execution processes arising from the earlier suit. Without a sufficiently particularised date and proof of the impugned eviction, the Court would be left to speculate whether the complained-of act occurred after the order of 28th November 2024 and whether it was the execution demonstrated in the documents or some separate subsequent act. Contempt cannot be founded upon speculation. 14. The Court must be satisfied not simply that an eviction occurred, but that: 15. the eviction occurred after and during the subsistence of the order; 16. it related to the property protected by the order; 17. the Respondents participated in, procured or authorised that eviction; and 18. they did so deliberately and with knowledge that their conduct breached the order. 19. On the evidence presently before the Court, that chain has not been proved with the strictness required for contempt. I therefore find that the Applicant has failed to establish the essential elements of breach and wilful or deliberate disobedience to the required standard. 20. That finding should not be misunderstood as validating any act of interference with the property protected by the injunction. The orders of 28th November 2024 remain binding unless reviewed, varied, discharged or set aside. What has failed is the evidential case for punishment for contempt on the particular material presently before the Court. The officer commanding Shelly Beach Police Station 1. The Applicant additionally seeks committal of the officer commanding Shelly Beach Police Station for failing to enforce compliance with the order. The order of 28th November 2024 undoubtedly directed that officer to enforce compliance. 2. The evidence presently before the Court, however, does not identify by name the officer sought to be committed, nor does it establish the particular conduct of that officer constituting deliberate disobedience. 3. Furthermore, the Respondents have produced a separate warrant in Civil Suit No. 2921 of 2009 expressly directing execution with the assistance of the OCS Shelly Beach. 4. The existence of those competing documents makes it all the more necessary for the Applicant to establish precisely what the police did, when they did it, upon which property, pursuant to which process and with what knowledge. That evidence has not been placed before this Court. 5. Moreover, a committal order affecting an individual’s liberty ought not to issue against an unidentified office-holder without clear proof that the particular person alleged to be in contempt had notice of the accusation and a proper opportunity to answer it. The prayer for committal of the officer commanding Shelly Beach Police Station therefore also fails. **Conclusion** 1. Courts must firmly protect their orders. Equally, the seriousness of contempt jurisdiction requires courts to guard against punishing a party where an essential link in the evidential chain remains uncertain. 2. In this matter, I find that: 3. The orders issued on 28th November 2024 were valid, subsisting and binding; 4. The Respondents had knowledge of those orders; 5. The Respondents’ present denial of the existence of MN/576 is difficult to reconcile with their earlier letter and sworn affidavits referring expressly to Plot No. 576/MN/576; 6. Nevertheless, the Applicant has not established to the requisite standard that the eviction complained of concerned the particular property protected by the injunction; 7. The Applicant has further failed to sufficiently particularise and prove the date and circumstances of the impugned eviction so as to demonstrate deliberate breach of the order after it was issued; 8. Contempt against the Respondents has therefore not been proved to the heightened standard applicable to such proceedings; and 9. Contempt against the officer commanding Shelly Beach Police Station has equally not been proved. **Orders** 1. Consequently, I make the following orders: 2. The Notice of Motion dated 20th April 2026 seeking committal of the Respondents and the officer commanding Shelly Beach Police Station for contempt of court is hereby dismissed. 3. For the avoidance of doubt, the injunctive orders issued by this Court on 28th November 2024 remain valid and binding unless and until they are reviewed, varied, discharged or set aside by a competent court. 4. Nothing in this ruling shall be construed as a determination of the ownership, identity or cadastral relationship between Plot No. MN/576/Plot No. 576 and Mombasa/Likoni/1960. Those matters remain issues for determination in the substantive proceedings upon proper evidence. 5. Given the Respondents’ own earlier documentary references to Plot No. 576/MN/576 and the resulting genuine controversy regarding the identity of the property, each party shall bear its own costs of the contempt application. 6. The substantive suit shall proceed to pre-trial directions and hearing so that the underlying dispute may be determined on its merits. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**