https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4281

Owaya v Okuro & another (Enviromental and Land Originating Summons 17 of 2021) [2026] KEELC 4281 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4281 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Enviromental and Land Originating Summons 17 of 2021 JW Wanyonyi, J July 7, 2026 Between Ishmael Owano Owaya Plaintiff and Lonah Bol Okuro 1st Defendant Cliff Oriwo Okuor 2nd Defendant Ruling 1.Failing to obey court orders undermines the rule of law, turning legal judgements into “paper tigers” with a ferocious capacity to roar and to show but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship. Laws may not make a man good but they may keep him from being bad. 2.There cannot be anything of greater consequence than to keep the streams of justice clean and pure, that parties may proceed with safety both to themselves and their characters. 3.Judgment in this matter was delivered on 1st March 2022 in the favor of the plaintiff against the defendants jointly for orders 1 to 5 and a declaration was made to the effect that the plaintiff had acquired customary trust over the suit parcel in terms of prayer 6 in the originating summons lodged in court on 27th October 2020. 4.Thereafter, on 16th March 2022, the 1st and 2nd Defendants/ Applicants filed an application dated 15th March, 2022 whereby they sought for stay of execution of the enforcement of the judgement and decree issued on 1st day of March, 2022 together with consequential orders arising therefrom, and or attendant, pending the hearing and determination of the appeal. 5.Upon hearing both parties, on 18th October, 2022 the Court delivered a Ruling granting stay but on condition that Security for the due performance of the decree is deposited within 30 days. 6.The Ruling was delivered in the presence of Nyakwamba Advocate who was holding brief for Bunde for the Applicant. 7.On 4th June, 2025, the Defendant /Applicant herein filed an application dated same day, through the firm of Bruce O. Odeny under Certificate of Urgency for the following Orders.1.Spent.2.Pending the hearing and determination of the application, an order of inhibition do issue restraining the registration of any dealing by the Plaintiff/ Respondent on suit parcel Kanyada|Kanyabala| 3646 and 3647.3.Spent.4.In the alternative, the contemnor be summoned to show cause why he should not be committed to civil jail for failure to comply with the court orders issued on 18th October, 2022.5.The court be pleased to order the Homa Bay County Registrar to cancel the registration of the plaintiff/ Contemnor of suit parcel Kanyada| Kanyabala | 3646 and 3647 as well as cancel any sub division and transfer as a consequence thereof and the original numbers be reverted back to its previous owners as at the date of the court stay orders of 18th October 2022 pending the hearing and determination of the decision of the Court of Appeal at Kisumu in Civil Appeal No E 030 of 2023. 8.The application is supported by the statement and affidavit sworn by the 2nd Defendant| Applicant and nine (9) grounds on the face of the application. 9.The reasons given in the affidavit are summarized as follows: The applicants were required to deposit Kshs 15000/- for due performance, which they did. That stay orders were made in the presence of counsel for the contemnor. That despite knowledge the contentions have transferred the suit parcel. That the respondent has gone on wanton sub- division and has settled strangers herein. The applicants have annexed copy of court directions (orders), official receipt for deposit, copy of search certificate. That the applicant set out that the Contemnor had filed a fresh suit in Homa Bay case number MCCC Misc/E001/ 2025 seeking to evict the occupants. That the application further highlighted that the Contemnor was in contempt of court for using the ELC judgement in the case number 17 of 2021(OS) to alter the ownership and for undermining orders in the Homabay Chief Magistrates Court in relation to matter before the appellate court. That service of the said application was served upon the Contemnor through his advocate on record. That the advocate responded expressing frustration and disappointment with his client’s conduct. That on the 7th February 2025 the Contemnor failed to comply with court directions and timelines issued by the appellate court and through instruction of his counsel the Contemnor was personally served with a further affidavit and submission. That in March 2025 the applicant’s advocate in the appeal wrote to the area chief requesting that he prevails upon the Contemnor to cease interference with the suit property ,which the chief did. The Contemnor has also settled members of his family on the suit land and sold parts thereof. 10.On the 12th June 2025 the court gave directions regarding the manner in which the application dated 4th June 2025 is to disposed of, as a matter of, caution, the court granted an order that the status quo which the court took the pains of defining the terms thereof. 11.On the 18th June, 2025 the firm of L.K Obwanda filed an application seeking leave to represent the contemnor in place of O.H Bunde and Company Advocates and on 26th June 2025 same was allowed. 12.On 2nd July 2025 the firm of Bruce Odeny was likewise granted leave to come on record and further directions of compliance were made by the court. 13.On 19th January 2025 both counsels for the parties confirmed filing their respective submissions, and on that basis, the court fixed a date for ruling. 14.Unfortunately, the ruling was not delivered for reason that Hon. Justice, Dr. (IUR) Fred Nyagaka was on transfer and, in the process, handed over the file to the incoming Judge for purposes of writing and delivering this ruling. 15.I note that on 18th June 2025, Counsel for the Respondent who is the Contemnor filed a replying affidavit in opposing the application dated 4th June, 2025.In Sum the plaintiff/Respondent states; That he Learnt of the proceedings when he received the documents on 12th June, 2025. That Upon obtaining judgment, he was not made aware of any proceedings thereafter. That the allegations that orders were made in his presence is mere lies. That the Respondent and himself live on the same parcel where they have established their home and at no time has he even tried to evict them. That he has neither declined to nor refused to obey any court orders. 16.In reply to the 2nd defendant/applicant swore a supplementary affidavit on 24th June 2025 which was filed in court on 25th June 2025. He states as follows. That on January 28th, 2025 one Thomas Ojanga applied to, be joined in the appeal before the court of Appeal as an interested Party with his claim being that he is the registered owner of the number 3647 for ten years, and who, the Contemnor conveniently left out in the instant suit The Applicant have annexed; application dated 28th January 2025 seeking to find the Respondent herein guilty of contempt in respect of the stay issued by this court. I have perused the attached Ruling of the Court of Appeal in Civil Appeal No E30 of 2023 and confirm that the Court of Appeal allowed Thomas to be a party to the Appeal. I have also seen the communication from Bunde Advocate, indicating that his client had messed up with the suit property, the affidavit of service by Fredrick Ouma Omollo and further supporting affidavit of Thoma Ochieng Osakwa. 17.On the 29th July, 2025 Counsel for the Defendants/Applicants filed his submissions. He addresses the following issues. That the Contemor has feigned ignorance that his advocate never informed him about the Court Ruling. That knowledge of a Court Order is sufficient, which can also include knowledge by Advocate, as was held in Shimmers Plaza versus National Bank of Kenya Limited (2015) eKLR. That the excuse that an Advocate failed to pass information is not a defence to disobedience of a Lawful Court ordered as was held in Ecobank Kenya versus Bobbin Limited (2016) eKLR. That in total defiance of the court order, the Contemnor claim had settled parts of his family and three additional individuals in the suit land. That the Principle of contempt extends to persons who assists, benefit from or are placed in possession by the Contemnor. Counsel relies on the case of Ochola Kamulu holding Limited versus Guardian Bank (2018) eKLR. He also refers to the decision of Lord Justice Denning in Hadkinson versus HadKinson (1952) 2ALC ER 567, 575 quoted in Mawani versus Mawani which in essence state that where contempt impedes the course of justice the court may in its discretion refuse to hear such a party. He also relied on the decision of Econet Wirdess Kenya Limited versus Ministry of information Communication Commission of Kenya & Another (2003 eKLR) regarding the duty of obeying Court Orders. 18.Counsel for the Contemnor filed her submissions on 1/8/2025 where she states thus;That the Contemnor was never served. That for Contempt to the following elements must be established: Terms of the order were clear and unambiguous. The respondent had knowledge of the terms of the order. The respondent acted in breach of the terms of the order. The respondent’s conduct was deliberate. The above element was addressed in efficient Dynamics versus Gret Cafe Limited ELC Number E006 of 2023 (2014) KEELC 773 (KLR). Counsel further reiterates absence ofdelivery of the Order and non-Service to the contemnor She relies in the decision of Wilhelminwa L Khaminwa Cecelia N Karechi Hellen K Kirugu, Joyce G. Maina, Mary Mugo T/a Metpat Enterprises & Another versus Obadiah Wainaina T/A County Maps Agencies & Another (2019) eKLR 4650(KLR, where the Court intimimated that is upon the applicant herein to satisfy the Court beyond any shadow of doubt that the person alleged to be in contempt was in full knowledge or notice of the existence of the Order of the Court forbidding. That no evidence of sub division has been rendered and that nobody has been evicted, or chased upon the suit land. 19.Having considered the application for contempt and supplementary affidavit in opposition and submissions tendered by counsels. It is now my obligation to address issues for determination. 20.I will now , in the outset ,address the legal framework of contempt and ,thereafter ,address the standard of proof vis -vis that facts presented through affidavit evidence. 21.Black’s Law Dictionary and 8th edition 2004 at page 956 defines : Contempt as conduct that defies the authority or dignity of the Court or legislature. The authors, similarly defines civil contempt as the failure to obey a Court Order that was issued for another person benefit. 22.In Kenya, the jurisdiction to institute and punish for contempt is donated by Section 5(1) of the Judicature Act, Cap 8 Laws of Kenya. This provision imputes into our jurisprudence part 81 of the English Civil Procedure Rules (2012) which governs application for committal for Contempt, and to some extent Kenyan Courts rely on Order 40 Rules 3 of the Civil Procedure Rules, 2010 when dealing with breaches for injunction and undertaking. 23.On the other hand, Section 63(c) of the Civil Procedure Act also gives power to a Court to issue a temporary injunction and in case of disobedience meter out punishment. If therefore goes without saying that the powers under order 40 and Section 63 are specific and limited to injunctions. 24.In the case of Christine Wangari Gachege v. Elizabeth Wangari Evans & 11 Others [2014] eKLR, the Court of Appeal undertook a comprehensive examination of Section 5(1) and the inherent law on contempt. It was held contempt in Kenyan Courts are guided by the prevailing English law of contempt as applied by the superior courts of record in England, specifically the Civil Procedure Rules (Rules of the Supreme Court) Order 52, and now Part 81 of the Civil Procedure Rules (2012). Importantly, the Court noted that absence of domestic legislation does not extinguish the power of Kenyan Courts to punish for contempt. 25.Section 29 of the Environment and Land Court Act also gives this Court power to punish any person who refuses, fails, or neglects to obey an order or direction of the Court given under the Act. 26.On the elements of contempt of Court, Counsel for the Respondent referred to the decision of the Environment and Land Court in "Efficient Dynamics & Supplies Limited versus Gret Cafe Ltd (Supra)" where the Court in reference to the case of Shimmers Plaza Limited v. National Bank of Kenya Ltd [2015] eKLR, Counsel for the Applicant reiterated the three (3) elements as:a.Applicant must demonstrate terms of the order.b.Applicant must demonstrate service of the order.c.Applicant must demonstrate failure of the respondent to comply of the respondent to comply. 27.The High Court in the South African case of Kristen Carla Burchell v. Barry Grant Burchell Eastern Cape Division case no 364 of 2002, reiterated the above elements. 28.Regarding the 1st element, there is no doubt that on 18th October, 2022, the Court did stay the judgment pending the hearing and determination of the Appeal and the Defendants were given 30 days to deposit security, which terms were clear. The Plaintiff was duly represented while Counsel for the Defendants was absent. 29.The terms of the Court order were clear and did not require any further interpretation. 30.In essence, the Court made a positive order which was to be obeyed. 31.On the issue of personal service or knowledge, which has been strongly disputed by the Respondent, In the case of Shimmers Plaza v. National Bank of Kenya (Supra), it was held.“The order was made in the presence of Counsel for the Respondent who as presumed to have informed the respondent of the same. He went ahead and transferred the property before the due date of judgment seemingly impatient to have full control for all. He acted in open contempt of this Court." 32.The Court went on to state:“The Courts should not fold their hands and watch helplessness as their orders are disobeyed with impunity. This would amount to abdicationof our sacrosanct duty bestowed on us by the Constitution." 33.The Supreme Court referring to the above case of Shimmers acknowledges that jurisprudential necessity has developed beyond necessity of personal service of penal notices and orders to knowledge of Orders. And that the Applicant must be aware of contempt proceedings (see CognoVentures Ltd v. Bia Tosha Limited & 6 Others Pet No 5/2023) to knowledge of orders. 34.I agree with Counsel when he says that the Contemnor has high degree of ignorance of the Court Orders. 35.To confirm that the Contemnor was aware of the of the proceedings and the ruling of the Court, on 11th May, 2022 he swore a replying affidavit in which he articulately opposed the application for stay and through his Counsels filed submissions. 36.The proof of the pudding is in the eating and as you make your bed, so you must lie in it. This implies that one must accept the result of his own action. 37.f the Contemnor was aware of the process, then hence must bear the full consequences of failing to follow up the results. 38.Ignorance is nothing but a matter of laziness, indifference and apathy on his part. 39.In Bi-March Engineers Ltd v. James Kahoro Mwangi [2011] eKLR, Waki, J.A observed:“The applicant has a duty advocated to pursue his position in the litigation butthere is no disclosure that the applicant bothered to follow up with his erstwhile Advocates. It is not enough to simply accuse the advocate of failure to inform etc. If there is no duty on the client to pursue his matter. If the advocate was empty/guilty of inaction, that is not an excusable mistake which the Court may condone with some sympathy. The client has a remedy against such advocate." 40.In the case of MKK v. JKK [2019] eKLR 4265, Justice Thande observedthus: "It is not every case that mistake of Counsel would warrant setting aside of the Orders of the Court. The matter belongs to Counsel and not his Applicant. He was obliged to demonstrate due diligence in the pursuit of his case, much he did not. The court taking into account the indifference and general conduct of the Defendant/Applicant herein cannot exercise its discretion in his favour. 41.To confirm that the Contemnor feigned ignorance he refused instructions given to him by his Advocate, and ended up frustrating his Counsel completely. Just as it was in the religious and biblical tradition , the story of Sodom which serves as the archetypal warning of punishment for sin so was the contemnor admonished by the Area Chief courtesy of the Applicant’s counsel by yet again he refused to listen. As a very last resort, and just like the proverbial straw that broke the camels back, he was personally served to attend the Court after demonstrating in the Appeal that had deliberately refused to co-operate but still he opted otherwise. 42.It is not for a citizen to know every law but one is required to act in a reasonable and honest manner, and if so, that can be a defence of not knowing a specific Law. The maxim "ignorance of law is no excuse" is not absolute and is not a law in itself maxim, does not shift a burden of proof to the Contemnor. However otherwise, would be a 'get out of jail free card'. 43.As Conficious, stated that real knowledge is to know the extent of one ignorance, this is true with the kind of ignorance that is displayed by the Contemnor. 44.I find that his conduct bespeaks volumes of a person who has deliberately choosen to disobey Order and upon being caught pants down feigns ignorance as his defence. 45.The Contemnor has not told the court the steps he has taken or intended to take to purge his contempt, having very well learnt, whether before or after, that the Court made a stay order. 46.I find that his conduct is despicable and calls for sanctions. 47.In the upshot;1.I find that the Contemor is guilty of contempt as sought in the application dated 18th June,2025.2.The Contemnor is directed to purge his contempt by canceling the transfers made and registration of the new titles, and immediately, revert the titles to the original numbers as at 18th October, 2022 at his own costs.3.The said Cancellation and restoration be done within 14 days from today’s date.4.The Contemnor shall personally appear in Court on 22nd July 2026 at 8.30 a.m for mitigation and sentencing.5.Costs of the application are awarded to the applicant. RULING DATED AND DELIVERED VIRTUALLY VIA TEAMS’ PLATFORM ON THIS 7TH DAY OF JULY 2026.In the presence of;Kimberly for Obwanda for the Respondent.Bruce Odeny for the Applicant- Absent.Mercy, Court Assistant.Kimberly: I just saw the notice on the Cause List. I did not Serve but I can serve tomorrow.COURT: Ruling Deferred To 8/7/2026 at 10.A.M.Deputy Registrar to Serve the Applicants Counsel. JUSTICE J.W WANYONYI -JUDGE7/7/2026