https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4371

Registrar Trustees of the Agricultural Society of Kenya v County Government of Kisumu (Environment and Land Case E003 of 2025) [2026] KEELC 4371 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4371 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E003 of 2025 E Asati, J July 9, 2026 Between The Registrar Trustees of the Agricultural Society of Kenya Plaintiff and The County Government of Kisumu Defendant Ruling 1.The Application before Court for determination is the Notice of Motion Application dated 2nd February, 2026, brought on behalf of the Defendant pursuant to the provisions of section 5 of the Judicature Act (Cap 8), sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 40 of the Civil Procedure Rules. 2.The Application seeks orders that;i.The Respondent be ordered to refund and pay into Court all the monies received from the Event’s Organizers and users of Jomo Kenyatta International Stadium – Mamboleo.ii.In the alternative to the above, the Respondent be held to be in contempt of the court ruling dated 30th October, 2025, and be committed to Civil Jail for 6 months.iii.The costs of the Application be provided for 3.The Application was supported by the contents of the Supporting Affidavit of Simon Onyonyi, sworn on 2nd February, 2026, and the annexures thereto. 4.The Applicant’s case is that the Court vide the Ruling dated 21st February, 2025, made a finding that the termination of the Memorandum of Understanding by the Respondent herein was irregular and that the Memorandum of Understanding was active as at the time of the filing of the suit herein. That the Court vide the Ruling dated 30th October, 2025, allowed the Respondent’s Application for an injunction but with a caveat that the Applicant herein use and management of the facilities should not be curtailed when acting in accordance with the Memorandum of Understanding between the parties. 5.That the Respondent vide a letter dated 2nd December, 2025, communicated to the Applicant demanding that the keys for the Stadium be handed over, purportedly in compliance with the orders of the court. That the Respondent, in total disregard of the Court orders, proceeded to weld the gates to the Stadium and changed all the door locks of the Applicant’s Offices situated within the Stadium. That the Respondent went ahead to take over the management of the stadium and is currently charging organizers of events intending to use the said property during the festive season. 6.That the Respondent’s acts amount to unlawful acquisition of public funds as they have no authority whatsoever to receive monies on behalf of the Applicant. 7.The Application was opposed vide the averment in the Replying Affidavit of Thadeus Fita, sworn on 19th February, 2026, and the annexures thereto. The case of the Respondent is that the Application is fundamentally misconceived as it proceeds on a premise already rejected by the Honorable Court in its Ruling delivered on 30th October, 2025. 8.That the first relief sought in the present application is res judicata, having been canvassed and determined in the Application dated 30th October, 2025. That the Court did not preclude the Plaintiff from benefitting monetarily from any of the facilities located on its own premises, including the stadium. 9.That the Plaintiff has not denied the Defendant access to the stadium on multiple occasions when they hosted various events in December, 2025, January, and February, 2026. That the Plaintiff has at all material times complied with the Court Ruling of 30th October, 2025. That the Application lacks merit and should be dismissed. 10.The Application was heard by way of Written Submissions. Written Submissions dated 20th February, 2026, were filed by the County Attorney – Kisumu on behalf of the Applicant. No Submissions have so far been filed on behalf of the Respondent. 11.I have considered the Application, the grounds raised in opposition thereto, and the Applicant’s Submissions. The basis of prayer 1 of the Application is that there exists a valid Memorandum of Understanding pursuant to which the Applicant is entitled to a refund of monies received from Event’s Organizers and users of the stadium. The Memorandum of Understanding was the subject of previous rulings, herein and particularly the ruling dated 30th October 2025, as stated by both Parties. The particulars of the Event Organizers and Users who used the stadium have not been provided or substantiated. It has not been demonstrated that there was an obligation on the plaintiff to hand over or refund money collected, if any, to the Defendant. I find that no ground has been demonstrated for the grant of prayer 1 of the application. 12.Regarding the alternative prayer for the Respondent to be punished for contempt of Court, the standard of proof for contempt cases is above the ordinary standard of proof on a balance of probabilities in civil cases. In Mutitika vs Baharini Farm Limited [1985] KLR 227, it was held that “contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…It must be higher than proof on a balance of probabilities, almost but not exactly, beyond a reasonable doubt….the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…” 13.The burden of proof was on the applicant to demonstrate the elements of contempt of court to the required standard of proof. In Johari School Limited -vs- Rosemary Wamburu t/a Johari School [2021] eKLR, the elements of contempt of court were stated to be;a.the existence of a valid court order whose terms are clear and unambiguous and binding on the respondent.b.proof that the respondent had knowledge or proper notice of the terms of the order.c.proof that the respondent acted in breach of the terms of the order; andd.that the conduct or action of the respondent was deliberate or willful. 14.In the present case, I find that the applicant has not proved contempt of court to the required standard. 15.The upshot is that the application is dismissed. Each party shall bear its own costs of the Application. The parties are urged to expedite the hearing and disposal of the main suit. Orders accordingly. RULING DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026.E. ASATI,JUDGE.In the presence of:Atika: Court AssistantKitur for the Plaintiff/Respondent.Omondi h/b for Qeu for the Defendant/Applicant.