https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3867

Republic v National Land Commission & another; Wainaina & 2 others (Ex parte) (Miscellaneous Civil Application E050 of 2022) [2026] KEELC 3867 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELC 3867 (KLR) Republic of Kenya In the Environment and Land Court at Thika Miscellaneous Civil Application E050 of 2022 JA Mogeni, J June 23, 2026 Between Republic Applicant and National Land Commission Respondent and Kabale Tache Arero Contemnor and Dominic Mbugua Wainaina Ex parte Julius Kiiru Mwaura Ex parte Veronica Mbutu Njunge (Suing as the legal representative of the Estate of William Ngugi) Ex parte Ruling 1.I have two applications filed before this Court; the first one is dated 10/07/2025 and the second one is dated 23/07/2025. This Notice of Motion, serves as a formal pursuit of penal sanctions for the continued defiance of judicial authority. 2.The 1st Application concerns the enforcement of a Court Decree originally issued in Thika ELC Case No. 94 of 2018, this Honourable Court is moved by Counsel for the Ex-Parte Applicants. The Motion is anchored upon the substantive provisions of Section 5 of the Judicature Act, Sections 9, 14, and 29 of the Environment and Land Court Act, and the procedural imperatives found in Sections 1A, 1B, and 3A of the Civil Procedure Act along with Order 51 of the Civil Procedure Rules. 3.The Applicants specifically pray for the following orders:i.That the Honourable Court be pleased to issue a warrant of arrest against the CEO/Secretary of the National Land Commission, Ms. Kabale Tache Arero, in enforcement of the sentence for contempt of Court imposed on 26th June 2025.ii.That the said warrants of arrest be implemented and enforced by the Officer Commanding Police Station (OCS), Capitol Hill Police Station.iii.That the Honourable Court be pleased to issue any further relief that it may deem fit to grant.iv.That the costs of this Application be borne by the Contemnor and the Respondent. 4.The Application is predicated upon the Supporting Affidavit sworn on 10/07/2025 by Dominic Mbugua Wainaina, the first Ex-Parte Applicant, who deposes on behalf of himself and the other legal representatives of the Estate of William Ngugi. The grounds for this Motion arise from what the Ex parte Applicants refer to as a chronic failure of the Respondent to satisfy the legal obligations set forth by this Court. 5.The deponent recounts that on 29/04/2025, the Court delivered a Ruling finding Ms. Kabale Tache Arero guilty of contempt. This finding was a direct consequence of her failure to comply with an Order of Mandamus issued on 27/09/2023, which directed the settlement of a decretal amount. Despite being duly notified of the subsequent date for mitigation and sentencing, the Contemnor failed to personally attend the proceedings on 26/06/2025, which the deponent characterizes as a further act of contempt. Consequently, the Court sentenced the Contemnor in absentia to a term of three months’ imprisonment or a fine of KES 500,000/-. 6.The Ex-Parte Applicants assert that the Contemnor and the National Land Commission have neither paid the fine nor surrendered to the custodial sentence, demonstrating a deliberate refusal to comply with the penal sanctions of the Court. It is further deposed that the Respondent has not preferred an appeal against the sentence nor sought any stay of execution, yet they remain in active defiance. 7.The deponent chronicles the Contemnor’s transition from civil default to criminal contempt. He draws the Court’s attention to the primary finding of guilt, incorporating Exhibit DWM-1, which is a true copy of the Ruling delivered by this Honourable Court on 29/04/2025. According to the Applicant the annexure which is a ruling confirm that the Respondent’s Secretary, Ms. Kabale Tache Arero, was formally found in contempt for her failure to satisfy the Order of Mandamus issued on 27/09/2023 regarding the settlement of the decretal amount. 8.To demonstrate the current stage of the penal process, the deponent further relies on Exhibits DWM-1(a) and (b). These annexures consist of the formal Ruling delivered on 26/06/2025 and the extracted Court Order of the same date, respectively. To the Applicant these documents prove that the Contemnor was sentenced in absentia to a custodial term of three months or a fine of KES 500,000/- after failing to appear for mitigation. 9.It is the contention of the Applicant that from the exhibits one can see that the chain of non-compliance is complete and indisputable. He asserts that because the Contemnor has ignored the sentence evidenced in Exhibit DWM-1(b), and has failed to prefer an appeal or stay as confirmed by the lack of any contrary record, the issuance of a warrant of arrest is the only remaining mechanism to ensure the rule of law is not rendered a dead letter. 10.The Application is opposed by the Director of Legal Affairs and Dispute Resolution, Brian Ikol vide the Replying Affidavit sworn on 16/10/2025. 11.The Director depones that the Application is fatally defective and incurably incompetent. He acknowledges the Court's previous rulings of 29/04/2025 and 26/06/2025, which found the Contemnor in contempt and imposed a fine or committal to civil jail for failure to satisfy a Judgment delivered by Justice L. Gacheru, J. regarding land compensation for Link Road E 1507. However, he explains that pursuant to Sections 107 through 133 of the Land Act, 2012, and specifically the mandatory requirements of Section 111(1A), the Respondent cannot legally or practically disburse funds until the acquiring body, the County Government of Kiambu deposits the same. 12.He further depones that because the County Government of Kiambu has failed to deposit the compensation funds, the Respondent remains without the statutory or financial capacity to comply with the Decree. To demonstrate that there is no willful disobedience, the Director cites the Respondent’s proactive measures, including the institution of Judicial Review Misc. Application No. E003 of 2025 (NLC -vs- County Government of Kiambu). He points out that the Court has already granted leave in that matter, acknowledging a prima facie case to compel the County to provide the funds, as evidenced by the pleadings annexed to his affidavit and marked "BI-1". 13.The Director emphasizes that contempt is quasi-criminal in nature and requires proof of deliberate defiance. He maintains that the delay is institutional rather than personal, and that punishing a public officer for budgetary constraints beyond their control would violate Articles 47 and 236 of the Constitution of Kenya, 2010. 14.Finally, he depones that an Appeal has already been lodged against the contempt finding and that allowing the current Application to proceed would render that Appeal nugatory and occasion undue hardship. He therefore prays for the dismissal of the Application with costs, relying on the evidence contained in the annexures marked "BI-1". 15.Furthermore, the deponent addresses the sentencing of Ms. Kabale Tache Arero. He clarifies that the Contemnor’s absence during the sentencing on 26/06/2025 was not a mark of disrespect, but was conditioned by the ongoing transition of legal representation to the firm of Koceyo & Company Advocates. The deponent argues that since an appeal is pending and the Commission has actively sought a stay of execution, the issuance of a warrant of arrest would be premature, draconian, and a violation of the Contemnor's right to due process. 16.The deponent concludes by referencing “Annexure BI-3”, a copy of the pleadings in Misc. Application No. E003 of 2025, which shows that the Commission has taken proactive legal steps to compel the County Government of Kiambu to pay. By embedding these annexures, the Respondent demonstrates that far from being defiant, the Commission is doing everything within its lawful powers to facilitate the payment, and therefore, the penal sanctions sought by the Applicants lack a basis in equity or fact. 17.In the second application a formal bid to stay the penal consequences of a prior contempt finding, the Respondent and the Contemnor move this Honourable Court under Sections 1 and 1A of the Civil Procedure Act, and the procedural dictates of Orders 1, 9, 10, 22, and 51 of the Civil Procedure Rules. The application seeks the following:i.Spent.ii.That the Honourable Court be pleased to stay the execution of the Ruling and Order issued on 29/04/2025 and the subsequent sentencing of the Contemnor on 26/06/2025 (to three months' imprisonment or a fine of KES 500,000/-) pending the hearing and determination of this Application.iii.That the Honourable Court be pleased to stay the execution of the said Ruling and sentencing pending the hearing and determination of the intended Appeal.iv.That the costs of this application be provided for. 18.The application is predicated on the contention that the Contemnor and Respondent have already preferred an appeal against the finding of contempt, possessing strong grounds that may succeed. It is argued that the Contemnor has a constitutional right to legal representation of her choice and has recently appointed the firm of Koceyo & Company Advocates to facilitate her participation in the proceedings. The Applicants maintain that the non-compliance was not "willful or deliberate" but was occasioned by the fact that the National Land Commission (NLC) was never furnished with compensation funds by the County Government of Kiambu, the acquiring entity. They assert that unless a stay is granted, the intended appeal will be rendered academic, resulting in a miscarriage of justice. 19.The Supporting Affidavit of Brian Ikol, Director of Legal Services and Dispute Resolution at the National Land Commission, serves as the factual cornerstone for the current application. The deponent meticulously chronicles the history of the suit, asserting that the Commission was not a participant in the compulsory acquisition of L.R. Nos. Muguga/Gitaru/1745, 143, and 2108, and maintains that the statutory burden of compensation rests with the County Government of Kiambu pursuant to Section 111(1A) of the Land Act, 2012. 20.To anchor these assertions, the deponent incorporates "Annexure BI 1", which comprises comprehensive documentation evidencing the factual background of the acquisition and the Commission’s administrative efforts to secure compliance through the proper statutory channels. He further deposes that while an Order of Mandamus was issued on 27/09/2023, the Commission is legally incapacitated from making payments until the acquiring entity remits the requisite funds. In demonstrating a lack of contumacious intent, the deponent cites the proceedings in Misc. Application No. E003 of 2025, where the Commission was granted leave to pursue Judicial Review against the County Government of Kiambu to compel the settlement of the award. 21.Finally, the affidavit references the Memorandum of Appeal and formal notices of appeal challenging the substantive Rulings of Justice Gacheru and Justice Kemei. The deponent argues that unless a stay of execution is granted, the Contemnor’s imminent imprisonment would render these appellate efforts and her constitutional right to Counsel of her choice entirely illusory, thereby occasioning a grave miscarriage of justice. 22.In opposition to the Notice of Motion dated 23/07/2025, the Ex-parte Applicants filed Grounds of Opposition, asserting that the application is a legal nullity and an affront to the dignity of this Honourable Court. 23.The Applicants primarily contend that the Respondent and the Contemnor lack the requisite standing or audience before this Court, as they have failed to purge the contempt for which they were found liable; it is argued that a party in active defiance of judicial orders cannot simultaneously seek the Court’s discretionary favor. Furthermore, the Applicants raise a jurisdictional objection, asserting that the Court is fundus officio and consequently lacks the power to revisit or grant the reliefs sought in the application. 24.From a procedural standpoint, the application is characterized as misconceived, frivolous, and fatally defective. The Applicants describe the motion as a blatant abuse of the Court process, designed to facilitate an appeal through the back door against the clear and subsisting Rulings of 29th April 2025 and 26th June 2025. They further point to the inordinate delay in filing the application, branding it a mere afterthought calculated to frustrate the Applicants and deny them the opportunity to enjoy the fruits of their hard-won Judgment. 25.The Applicants submit that the motion fails to satisfy the stringent legal threshold for the grant of a stay of execution. They emphasize that the Contemnor and the Respondent have approached this Honourable Court with unclean hands, having consistently failed to comply with the Court's Decrees, and are therefore undeserving of the equitable relief sought. For these reasons, the Applicants seek to have the application struck out with costs. 26.The Court directed parties to file written submissions when they appeared in Court on 19/02/2026. At the time of writing this ruling only the Respondent had filed their submissions dated 17/11/2025 in support of both application which I have considered. Analysis and Determination 27.Having considered the pleadings, the affidavits, and the rival arguments, the following issues emerge for determination:i.Whether the Contemnor/Respondent has a right of audience before this Court while in a state of unpurged contempt.ii.Whether the Respondent has demonstrated a lack of willful disobedience sufficient to warrant a stay or vacating of the penal sanctions.iii.Whether the application for stay of execution satisfies the threshold established under the law and the Civil Procedure Rules. 28.The Ex-Parte Applicants forcefully argued that the Respondent lacks standing until the contempt is purged. This is a fundamental principle of our legal system. However, the Kenyan Courts have nuanced this position. In Hadkinson v. Hadkinson [1952] 2 All ER 567, which was adopted with approval in Teachers Service Commission v. Kenya National Union of Teachers & 2 others [2013] eKLR, the Court held:“It is a strong thing for a Court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a Court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance." 29.While the Contemnor is indeed in default, she seeks a stay to challenge the very legality of that default. To deny her audience entirely at this stage would be to shut the doors of justice in a matter involving personal liberty, which is protected under Article 29 of the Constitution. Therefore, this Court shall grant audience to determine the merits of the stay application. 30.The Respondent’s primary defense is that the NLC is a conduit and cannot pay until the County Government of Kiambu remits funds under Section 111(1A) of the Land Act. They rely on the proactive step of filing Misc. Application No. E003 of 2025 against the County as evidence of good faith. 31.In Basu v. Kondal [1946], and later in the Kenyan case of Wachira Waruru & Another v. Pangani Girls High School [2020] eKLR, the Court observed that:“Contempt of Court is a serious matter and the Court should not be slow to punish it. However, it must be proved that the disobedience was willful and not merely a result of inability or external factors beyond the control of the party."Furthermore, in Re Bramblevale Ltd [1970] Ch 128, Lord Denning stated:“A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved... it must be proved with that degree of satisfaction as is required in a criminal case." 32.In the present case, while the NLC points to budgetary constraints, a Decree of the Court is not a mere suggestion. The Order of Mandamus was issued in September 2023. As stated in Seldon v. Wilde [1911] 1 KB 701, the lack of funds is generally not an excuse for a public body to ignore a peremptory order of the Court. However, the fact that the NLC has now sued the County Government suggests a shift from indifference to attempted compliance. 33.On the threshold for stay of execution, the Respondent seeks a stay under Order 42 Rule 6 of the Civil Procedure Rules. The requirements are:(a)substantial loss may result unless the order is made;(b)the application has been made without inordinate delay; and(c)such security as the Court orders for the due performance of such Decree or order as may ultimately be binding on him has been given. 34.The Applicants argue there was inordinate delay. The sentence was passed on 26/06/2025, and the stay application followed on 23rd July 2025. In the context of a three-month prison sentence, a delay of nearly a month is significant but not necessarily fatal if a constitutional right to appeal is at stake. 35.As held in Kenya Shell Limited v. Kibiru [1986] KLR 410:“Substantial loss in its widest sense is the cornerstone of both the jurisdiction for granting a stay and the exercise of that jurisdiction." 36.If the CEO is imprisoned and the appeal later succeeds, the loss of liberty is an irreversible substantial loss. Final Disposal Orders 37.This Court finds that while the dignity of the Court must be protected, the penal sanctions of imprisonment should be a matter of last resort, especially where a public officer demonstrates that the obstacle to compliance is an inter-governmental budgetary failure. However, the Applicants cannot be left without a remedy indefinitely. 38.Accordingly, I make the following orders:i.That the application for the issuance of a warrant of arrest dated 10/07/2025 is hereby stayed for a period of sixty (60) days from the date of this Ruling.ii.That the Respondent’s application for a stay of execution dated 23/07/2025 is granted on condition that the Respondent (National Land Commission) provides evidence to this Court within thirty (30) days of the specific budgetary requisitions made to the County Government of Kiambu and the National Treasury following the Order of Mandamus.iii.That the Contemnor, Ms. Kabale Tache Arero, is hereby ordered to file a personal Affidavit in this Court within fourteen (14) days explaining the steps taken to satisfy the Decree since the sentencing of 26/06/2025.iv.That should the Respondent fail to comply with Order No. 2 and 3 above, the stay of execution shall automatically lapse, and the warrant of arrest against the CEO/Secretary shall issue forthwith without further reference to this Court to be extracted by the Ex parte Applicant.v.That the costs of both applications shall be in the cause of the intended appeal. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 23RD DAY OF JUNE 2026..........................MOGENI JJUDGEIn the presence of:…………………………………………………….. for the Ex Parte Applicant………………………………………….………….for 1st Respondent…………………………………………………….for ContemnorMr. Melita………………………………………………. Court Assistant.........................MOGENI JJUDGE