https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12477

Patel v Midwa t/a Churchill Midwa & Company Advocates (Commercial Case E630 of 2025) [2026] KEHC 12477 (KLR) (Commercial and Tax) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 12477 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E630 of 2025 JWW Mong'are, J July 17, 2026 Between Mridula Bhadresh Patel Plaintiff and Omondi Patrick Churchill Midwa t/a Churchill Midwa & Company Advocates Defendant Ruling 1.On 12th November 2025, the court directed the Defendant to provide an account of all sums received while acting for the Plaintiff in the sale transaction of House No. 3 on Land Reference No. Nairobi/Block 35/195. He was also to release to the Plaintiff all sums of money held by his firm from the purchase price of the same property transaction and the court allowed execution against the Defendant for the sums held on the Plaintiff's behalf if he fails to comply with these orders. 2.When the matter was mentioned on 24th November 2025 in the presence of counsel of the Plaintiff and in the absence of the Defendant or his counsel, a Notice to Show Cause (NTSC) was issued to the Defendant. The Defendant responded to the NTSC through his affidavit sworn on 29th January 2026. The parties have canvassed the NTSC by way of written submissions. The Plaintiff submits that the Defendant received client funds, admitted in court that the money is owed except for a small disputed part and was ordered by the court to pay the undisputed amount and that the order included a penal notice. 3.The Plaintiff contends that the Defendant has failed to comply with the payment order, ignored the NTSC and has not provided a valid reason for non-compliance. That the Defendant’s claim that no application existed for the NTSC is false as the court record shows otherwise and the Plaintiff cites the principle that court orders must be obeyed unless discharged and that willful disobedience undermines the court's authority. That the Defendant has not alleged an inability to pay or offered any alternative proposal and that all procedural steps under Order 22 of the Civil Procedure Rules have been met including the issuance of the NTSC and the Defendant’s failure to show cause, which justifies the issuance of a warrant of arrest. 4.The Plaintiff emphasizes that the Defendant holds client funds in a fiduciary capacity and his conduct brings the profession into disrepute and undermines public confidence in the justice system. In conclusion, the Plaintiff asserts that the threshold for issuing a warrant of arrest has been met and asks the court to issue the warrants, commit the advocate to civil jail, order him to purge the contempt by paying the sum and award costs to the Plaintiff. 5.In response, the Defendant avers that the NTSC was issued unlawfully because no formal application was made by the Plaintiff to anchor the order for the NTSC and that the court issued the NTSC before the substantive Originating Summons was disposed of which the Defendant contends is procedurally irregular. 6.The Defendant contends that under Order 22 of the Civil Procedure Rules, an can only properly issue after judgment is entered and a decree is issued not before and that since no judgment exists, execution proceedings are premature and invalid. The Defendant states that the court's order of 11th November 2025 requiring him to show cause why he should not be held in contempt is fraught with illegality and an affront to section 5 of the Judicature Act for being issued without any formal application for contempt as contemplated by the law and contrary to the procedures governing contempt proceedings in Kenya, which must follow the rules applicable in the High Court of Justice in England. 7.The Defendant maintains that the dispute concerns client funds held by an advocate and while Order 52 Rule 4 of the Civil Procedure Rules may be appropriate, the proceedings have not followed due process. Further, that section 51(1) of the Advocates Act is not applicable to this dispute and for this and the aforementioned reasons, it urges that the NTSC be declared unlawful and no further proceedings be undertaken pursuant to it. 8.I have gone through the pleadings and submissions. The Defendant is supposed to show cause why he should be not cited and punished for contempt of the court’s orders of 12th November 2025. Whereas the Contempt of Court Act was declared unconstitutional by the court in Kenya Human Rights Commission v Attorney General & another [2018] KEHC 9656 (KLR), courts still possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court. Indeed, section 5(1) of the Judicature Act(Chapter 8 of the Laws of Kenya) grants this court power to punish for contempt as follows:The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England and that power shall extend to upholding the authority and dignity of subordinate courts. 9.It is trite that once a court issues an order, it binds all and sundry, the mighty and the lowly equally without exception. It is meant to be obeyed and not otherwise and that the ingredients required to be proved for a successful contempt prosecution were set out by the Court of Appeal in Ochino & another v Okombo & 4 others [1989] KECA 65 (KLR) where it cited its own decision in Mwangi Mangondu v Nairobi City Council (Civil Appeal No. 95 of 1988) where it was held that, “[T]he court will only punish as a contempt breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.” The position on the applicable standard of proof has been affirmed by the Supreme Court which held as follows in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR):In enforcing compliance with lawful court orders, the procedures adopted by the court must be fair and reasonable in which full opportunity is given to an alleged contemnor to defend himself or herself. This is because contempt proceedings being quasi-criminal, require a higher standard of proof than in normal civil cases, and one can only be committed to civil jail or penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability. 10.Further, our jurisprudence has shifted and developed that knowledge of an order supersedes personal service. The rationale behind this change appears to be the need to protect the integrity and dignity of Court orders. To excuse a contemnor who has knowledge of a Court order simply because he has not been personally served is to open up Court orders and process to deliberate, willful, contemptuous and cynical disobedience (See Sang v Keter & 5 others [2024] KEELC 14136 (KLR) ]. 11.I find the Defendant's argument that no formal application was filed to anchor the NTSC to be disingenuous. As noted by the Plaintiff, the court itself issued the NTSC on 24th November 2025 and if the Defendant believed the NTSC was irregular, his remedy was to apply to set it aside, not to ignore it or raise a belated procedural objection in his response. I agree that the court proceedings and record speaks for itself and a party cannot defeat enforcement by simply denying the existence of an order on affidavit. 12.The Defendant's reliance on the fact that the Originating Summons is still pending is also misplaced. The court has inherent jurisdiction under section 3A of the Civil Procedure Act and section 5(1) of the Judicature Act to above to enforce its interim orders, even before final judgment. The NTSC was issued to enforce compliance with the interim order of 12th November 2025, which required the Defendant to account for and release client funds. 13.Turning to the substance of the NTSC, I find that the court’s order was clear and unambiguous that the Defendant must account for and release client funds. The Affidavit of Service by Godfrey Kinyanjui Mbugua confirms the order was served on the Defendant's office on 14th November 2025 and acknowledged by his clerk and the penal notice was prominently included in the order. The Defendant has not paid the sums or rendered an account, he has only filed procedural objections and has not provided any credible explanation for non-compliance. The evidence leaves no doubt as to the Defendant's culpability and I find that he is in contempt of the court’s orders of 11th November 2025 and I convict him accordingly. 14.As to the penalty, I will borrow the late Majanja J.’s words in Gatabaki & 2 others (All Suing as the Co-Administrators of the Estate of Samuel Mundati Gatabaki Deceased) v Muga Developers Limited & 3 others [2023] KEHC 3324 (KLR) that ultimately the purpose of the contempt is to maintain the dignity of the court and its processes and the interest of the court and no doubt the Applicants, in this case, the Plaintiff, is to ensure that court orders are obeyed and implemented. I will therefore give the Defendant an opportunity to purge his contempt by directing that he complies with the court’s orders, failure to which, I will sentence him on 31st July 2026. This matter will be mentioned then to ensure compliance. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JULY 2026............................................................................J.W.W. MONGAREJUDGEIN THE PRESENCE OFMr. Chacha holding brief for Mr. Kelvin Mogeni for the Plaintiff/Applicant.Mr. Neville Amolo for the Defendant.Amos- Court Assistant