https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4392

Parkar Radio House Ltd v Kirima (Sued in His Capacity as an Administrator of the Estate of G.K. Kirima - Deceased) & another (Environment and Land Miscellaneous Application E104 of 2026) [2026] KEELC 4392 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELC 4392 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Miscellaneous Application E104 of 2026 CA Ochieng, J July 14, 2026 Between Parkar Radio House Limited Applicant and Stephen Kamau Kirima (Sued in His Capacity as an Administrator of the Estate of G.K. Kirima - Deceased) 1st Respondent Ann Wangari Kirima (Sued in Her Capacity as an Administrator of the Estate of G.K. Kirima - Deceased) 2nd Respondent Ruling 1.What is before the Court for determination is the Applicant’s Notice of Motion application dated the 9th April 2026, where it seeks the following Orders:1.Spent.2.Spent.3.The 1st and 2nd Respondents be directed to attend this Honourable Court in person on such date as the Court may direct to answer the charge of contempt.4.This Honourable Court be pleased to find and hold that the 1st and 2nd Respondents are in willful and deliberate contempt of the order issued by the Business Premises Rent Tribunal at Nairobi in BPRT/E428/2026 on 2nd April 2026.5.Upon such finding, the 1st and 2nd Respondents be punished for contempt in such manner as this Honourable Court shall deem fit and just, including by fine, sequestration, committal or such other coercive sanction as may be necessary to vindicate the authority of the Tribunal and the Court.6.The 1st and 2nd Respondents be ordered forthwith, and in any event within two (2) hours of service of the order to be made herein, to purge their contempt by restoring the Applicant to full, quiet and unfettered possession, access, legal control, keys and dominion over Shop No. 1 and Room 42, Luthuli Premises, L.R. No. 209/5570, Nairobi.7.For the avoidance of doubt, compliance with prayer 6 above shall not be achieved by handing or purporting to hand possession, control or access to any third party in substitution for the Applicant; and any continued occupation by any person claiming through the Applicant may only subsist through and under the Applicant and not by reason of any direct attornment, recognition, grant or dealing by the Respondents.8.In default of compliance, the Applicant be at liberty to secure compliance with the assistance of the OCPD Central Police Station, the OCS Kamukunji Police Station and /or a licensed locksmith, and the Respondents do bear the attendant costs personally.9.The costs of this Application be borne by the Respondents personally and in any event.10.This Honourable Court be pleased to grant such further, better or consequential orders and directions as it may deem fit, including, if necessary and without prejudice to the merits of this Application, such directions as may preserve the Applicant's right to seek contempt sanctions in the proper forum without duplication of process or loss of time. 2.The application is premised on grounds on its face and on the supporting and supplementary affidavits of the Applicant’s director, one Muktar Parkar. He claims that the Applicant is the tenant in respect of Shop No. 1 and Room 42, Luthuli on LR. No. 209/5570, Nairobi. Further, that in BPRT/E428/2026 before the Business Premises Rent Tribunal, its name was erroneously described as “Parker Radio House Limited” instead of “Parkar Radio House Limited”. He explains that in the aforementioned matter, the Applicant obtained an urgent Order on 2nd April 2026, which directed the Respondents to remove and/or surrender all locks, chains, padlocks and barriers placed on its business premises and to restore it to full, quiet and unfettered possession and access thereto. 3.He avers that the Order further provided that in default of compliance within two hours of service, the Applicant would be at liberty to regain access with the assistance of the OCPD Central Police Station and the OCS Kamukunji Police Station. He explains that the Order further restrained the Respondents from relocking, evicting, harassing, intimidating, obstructing access to, or interfering with the Applicant's possession, occupation and use of the suit premises. 4.He claims that the Order was served upon the Respondents on the same day but they failed to comply with it, as they purported to reopen the suit premises. Further, that they did not reinstate the Applicant to possession but instead, they restored one Ms. Fariah Shakur in substitution for the Applicant. He points out that the business use of the premises was being undertaken by Ms. Fariah Shakur through arrangements made by the Applicant. Further, that it did not displace the Applicant's benefit of the Tribunal's Order thus their conduct amounts to deliberate, willful and continuing contempt of the Order of 2nd April 2026. Response 5.In opposition, the Respondents filed a replying affidavit sworn by the 1st Respondent. He avers that the estate of G.K Kirima is the registered proprietor and head landlord of the suit premises. While he acknowledges the impugned Orders of 2nd April 2026, he avers that the estate of G.K Kirima placed no such locks, thus there was no breach by the Respondents. He claims that the impugned locks belonged to Ms. Fariah Shakur, the Applicant’s sub tenant, on her own business unit. He contends that the obligation to remove a lock can only fall upon the party who placed it, thus the Respondents are not in contempt. 6.He points out that on 31st March 2026, the day before the BPRT/E428/2026 Order, the Business Premises Rent Tribunal issued an order in BPRT/E408/2026 (Fariah Shakur v Mukhtar Parker) restraining the Applicant's director from evicting, removing, locking out, or in any manner interfering with Ms. Shakur's occupation and quiet possession of the suit premises hence a Protective Order in BPRT/E408/2026, was in existence before the Applicant obtained the impugned Orders. 7.He contends that the Applicant’s corporate identity is in question as the Respondents conducted a search on 17th May 2026 on the official Business Registration Service (BRS) at brsv2.ecitizen.go.ke, which revealed that ‘Parkar Radio House Limited’ is non-existent, while "Parker Radio House Limited" bears Registration Number C.33604, but its status reads, "Verified: false." 8.He also points out that the Applicant’s director has sworn to irreconcilable evidence in parallel proceedings as in his Replying Affidavit in BPRT/E408/2026, he denied any landlord-tenant relationship with Ms. Fariah Shakur and denied having placed her in the premises yet in his Supporting Affidavit in this matter, he states that the occupation of the suit premises was being undertaken by Ms. Fariah Shakur through arrangements made by the Applicant. 9.The Respondents also filed Grounds of Opposition, which mirror the averments in the 1st Respondent’s replying affidavit. 10.The application was canvassed by way of written submissions. Submissions 11.The Plaintiff submits that the Respondents were properly served with the impugned Orders via WhatsApp, which is a permitted mode of service under Order 5 Rule 22C of the Civil Procedure Rules and that their own admission independently establishes actual knowledge of the impugned Orders. 12.Further, that no contempt relief is sought against Ms. Fariah Shakur, because non-joinder is not fatal under Order 1 Rule 9 of the Civil Procedure Rules and because any genuine need for her presence is curable by joinder under Order 1 rule 10(2). 13.It also submits that while the Respondents’ deliberate disobedience is on the basis that they considered the Tribunal’s Order impracticable, they ought to have moved the Tribunal to vary or discharge the impugned Order but should not have ignored it. 14.To buttress its averments, it relied on the following decisions:Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR;Sheikh & another v Osman & 4 others [2025] KEHC 3962 (KLR);Hadkinson v Hadkinson [1952] [1952] 2 All ER 567;Equity Bank Kenya Ltd v Hassan & 2 other Hassan & 3 others [2023] КЕНС 20269 (KLR) andEtemesi v Kokoyo [2025] KEELC 224 (KLR). 15.The Respondents did not file submissions. Analysis and Determination 16.I have considered the instant Notice of Motion application including the respective affidavits, Grounds of Opposition as well as submissions and the only issue for determination is whether the Respondents are in contempt of orders issued in BPRT E428 of 2026, on 2nd April 2026. 17.The Applicant claims that the Respondents are in willful and deliberate contempt of the said Orders issued on 2nd April, 2026 in BPRT E428 of 2026, which directed them to remove all locks, chains, padlocks and barriers placed on its business premises and to restore it, in possession of Shop No. 1 and Room 42, on L.R. No. 209/5570, Luthuli, Nairobi. It claims that instead of restoring it, to the suit premises as ordered by the Court, the Respondents restored its sub tenant, one Ms. Fariah Shakur despite being served with the Orders, and having actual knowledge as admitted in their replying affidavit. 18.In opposition, the Respondents contend that they are not in willful disobedience as they did not place locks on the suit premises. They also contend that before the impugned Orders were issued, prior orders were issued in BPRT/E408/2026 restraining the Applicant's director from evicting or interfering with Ms. Shakur's occupation of the same premises. They insist that it is the Applicant’s sub tenant Fariah Shakur who had placed locks on the suit premises, thus any interference with them or her occupation would itself have risked disobedience of the said Orders. The Respondents also question the Applicant’s capacity to institute this suit on the basis that there is no evidence that it is a registered limited company. 19.Black’s Law Dictionary (Ninth Edition) describes contempt of Court as follows:-“Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.” 20.In Halsbury’s laws of England at para 463 Vol 9(1) (Re-issue) 3, it was stated as follows:-“…..and a person not a party against whom any judgement or order may be enforced is liable to the same process for enforcing obedience to it as if he were a party”. 21.In the case of Mutitika v Baharini Farm Ltd [1985] eKLR, the Court of Appeal held as follows:“In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases.’ 22.While in the case of North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi (2016) eKLR Justice Mativo (as he then was) stated as follows on proof of contempt of Court:'writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-' there are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases - (a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate.' Emphasis Mine 23.In the instance, the Applicant has not denied that the alleged locks belonged to Ms. Fariah Shakur, its sub tenant, on her own business unit. Further, that on 31st March 2026, the Business Premises Rent Tribunal issued an Order in BPRT/E408/2026 (Fariah Shakur v Mukhtar Parker) restraining the Applicant's director from evicting, removing, locking out, or in any manner interfering with Ms. Shakur's occupation and quiet possession of the suit premises. Which brings me to the question that if indeed there was already a Protective Order in BPRT/E408/2026 over the demised premises, how were the Respondents expected to break the locks they did not install and restore the Applicant to the suit premises, yet there was already an earlier Order restraining it, from the said premises. My answer is in the negative. 24.Even though the Applicant has argued in its submissions that the Respondents should have sought for variation of the Orders issued by the Business Premises Rent Tribunal at Nairobi in BPRT/E428/2026 on 2nd April 2026, I opine that it was the responsibility of the Applicant to seek for review of the said Orders as the Applicant was well aware that there were already earlier Orders issued against it and should have divulged this, to the Tribunal. At this juncture, I opine that the Applicant was not being candid as it obtained Orders after its subtenant had been issued with a Protective Order. 25.It is worthnoting that there were two competing Orders emanating from BPRT in respect to one suit premises. It has also emerged that the subtenant who was put into the suit premises by the Applicant is the one who put the locks on the suit premises. Insofar as the Applicant contends that the Respondents ought to have restored it to the suit premises as directed in the aforementioned BPRT cause, I opine that there was indeed ambiguity since there were two competing Orders. Further, since there were two competing Orders with one issued against the Applicant, I find that there was no wilful disobedience of the impugned Orders from the BPRT as claimed. It is my considered view that the Applicant ought to have been candid before obtaining Orders from BPRT and disclosed that there were already restraining Orders against it. 26.Based on the facts before me while associating myself with the decisions cited above, I am of the view that the Applicant has failed to demonstrate that there was wilfulness and mala fides disobedience of the orders of the BPRT, by the Respondents. 27.It is against the foregoing that I find the Applicant’s Notice of Motion application dated the 9th April, 2026 unmerited and will disallow it. 28.Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Odera for ApplicantSang for RespondentCourt Assistant: Vena