https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10495

Ogolla v Otieno (Family Appeal E008 of 2024) [2026] KEHC 10495 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10495 (KLR) Republic of Kenya In the High Court at Kisumu Family Appeal E008 of 2024 AM Hassan, J July 14, 2026 Between Sydney Ogolla Appellant and Jacob Ochieng Otieno Respondent (Being an Appeal against the Ruling of the Hon. K. Cheruyiot (SPM) delivered on the 8th October, 2024, in Kisumu CM Succession Cause No. 137 of 2019) Judgment A. Introduction/ Facts of the Case 1.The background of the Appeal is a Claim filed in the Magistrates Court through an Application dated 12 th July 2024, where the Administrator/ Applicant sought orders that the Respondent be found in contempt of court order issued on 30th May 2024, and orders for the Respondent’s arrest and committal to civil jail for a term not exceeding six (6) months for contempt of court and such other orders the court may deem necessary for the interests of justice. 2.The Application was instituted on the grounds that the court delivered a ruling on 30th May 2024, that declared the Appellant was restrained from interfering with the suit motor vehicle for reason of the same having been declared as part of the estate of the deceased. 3.The Respondent vide a Replying Affidavit dated 23rd July 2024, opposed the application on the grounds that the motor vehicle in issue KCB 154W had been surrendered to one, James W. Kazura, in the year 2022, prior to the court ruling and the consequential orders issued on 30th May 2024. 4.It was further opposed on the ground that James W. Kazura had filed MCCC No. E 224 of James W. Kazura v. Jacob Otieno Odada and obtained restraining orders in respect of the motor vehicle, and that in the circumstance, the Respondent lacked capacity to execute the court orders since the Respondent was employed as a driver by James W. Kazura and he had no interest in the suit motor vehicle. 5.The matter on coming up for mention on the 21st August 2024, the court directed that the application be canvassed by way of written submissions. In its consideration, the court found that, the suit motor vehicle KCB 154 W was registered in the name of the deceased herein, and that since no trust was proved in favour of any person in respect to the motor vehicle, the same formed part of the estate of the deceased. 6.Further, the court found & held that, the agreement of transfer dated was invalid & amounted to intermeddling with the estate of the deceased, since the deceased had died prior to the purported date of transfer 17th June 2018, and that grant of letters of administration were issued on 29th July 2019 and confirmed on 29th January 2020. 7.Subsequently, the suit motor vehicle having been declared part of the estate of the deceased, could not be subjected to determination as to ownership other than in a succession cause. For that reason, the trial court was satisfied that the respondent had failed and refused to comply with the court orders issued and only gave excuses. 8.The learned magistrate, in conclusion, held as follows:1.“I find that the Application dated 12th July 2024 is merited 2.I find the Respondent in contempt of the court orders issued on 30th May, 2024. He should therefore be arrested and presented before the court at the earliest for committal to civil jail. 3.Orders to issue accordingly.” 9.Being dissatisfied with the ruling of the learned Magistrate, the Appellant appealed the ruling through the Memorandum of Appeal dated 11th October 2025, on the following grounds: - 1.The learned trial magistrate erred in both law and fact in finding merit and allowing petitioner’s application dated 12.07.2024. 2.The learned magistrate erred in law and fact by making a finding that the subject motor vehicle KCB 154W is part of the estate of the deceased and cannot be subjected to determination as to ownership otherwise than in succession cause. 3.The learned magistrate erred in law and fact by making a finding that the Respondent is giving excuses as to why he has not complied with orders issued on the 30.05.2024. 4.The learned magistrate erred in law and fact by failing to appreciate the fact that there was in existence a restraining order issued in Kisumu CMCC No. E224 of 2024 James W. Kazura v. Jacob Otieno Odada (suing as the administrator of the estate of the late peter Odada Sumba) blocking the Respondent from the suit property hence practically impossible for the Appellant to surrender the motor vehicle to the Respondent without being held in contempt. 5.The learned magistrate erred in law and fact by making a finding that the Respondent is in contempt of the orders issued on the 30.05.2024. 6.The learned magistrate erred in law and fact in failing to take into consideration the submissions made by the Appellant. 7.The ruling is against the weight of evidence on record and the law 10.The Appellant prayed that the appeal be allowed with cost to the Appellant and the ruling of learned Magistrate Hon. K. Cheruyiot (SPM) delivered on 08.10.2024 in Kisumu Succession No. 137 of 2019 be set aside in its entirety, and be substituted with one dismissing the Respondent’s application dated 12.07.2024. 11.The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified. B. Submissions By Parties Appellant’s Submissions 12The sole issue by the Appellant was whether the Appellant was in contempt of the court order issued on the 30th July 2024. The Appellant submitted that he was not in any manner in contempt of the court order dated 21st August 2024, because he had long surrendered the same to his boss James W. Kazura way back in 2022 prior to the courts ruling on 30th May 2024. 13.The Appellant contended that, he had instantly informed James W. Kazura of the application who notified him that he had long instituted a suit vide Kisumu CMCC No. E224 of 2024 (James W. Kazura v. Jacob Otieno Odada) sued as the administrator of the estate of the late Peter Odada Sumba) in which he had already obtained an order restraining the Appellant from taking possession of the suit motor vehicle. 14.The Appellant submitted that in the circumstance, no matter how much he was willing, he lacked the capacity to surrender the vehicle as directed by the trial court because the said motor vehicle was in possession on his boss James W. Kazura and he was only employed as a driver, and had no interest in the suit motor vehicle. 15.Additionally, the Appellant argued that he had been wrongly joined in the contempt proceedings as clearly adduced by James Kazura in his replying affidavit. The Appellant asserted that the motor vehicle was in possession of James W. Kazura and not himself, and thus he was unable to comply with the orders of the trial court requiring him to surrender the same as he lacked capacity. 16.The Appellant further submitted that the ruling of the trial magistrate was inconsistent with and contradicted the orders issued in Kisumu CMCC No. E224 of 2024, which restrained the Respondent from interfering with the motor vehicle. 17.On the basis of the foregoing arguments, the Appellant urged the appellate court to find that the appeal was meritorious, and allowed. - Respondent’s Submissions 18.The Respondent had not filed their submission by the time of writing the judgment herein. 19.In the circumstances, I have considered the pleadings of the parties and submissions by the Appellant and I therefore wish to have the following as issues for determination; C. Issues For Determinationi.Whether the trial court erred in finding the Appellant to be in contempt of the court orders issued on 30th May 2024.ii.Whether the trial court properly considered the Appellants’ defence of inability to comply with the court ordersiii.Whether in the circumstances of the case, the orders allowing the Respondent application and directing the Appellants’ arrest and committal to civil jail were lawful and justifiediv.Who bears the cost of the suit D. ANALYSIS AND DETERMINATION i. Whether the trial court erred in finding the Appellant to be in contempt of the court orders issued on 30th May 2024 20.The Appellant contends that the learned trial magistrate erred in finding him to be in contempt of the court orders issued on 30th May 2024. He submits that the Respondent failed to establish the essential ingredients of contempt, particularly that he had willfully and deliberately disobeyed the orders of the court. The Respondent, on the other hand, maintains that the Appellant had knowledge of the orders and deliberately failed to comply, thereby justifying the finding of contempt. 22.The law relating to contempt of court is founded on the principle that court orders are binding upon all persons to whom they are directed and must be obeyed unless and until they are set aside by a court of competent jurisdiction. The authority and dignity of the courts depend upon compliance with their lawful orders, and deliberate disobedience undermines the administration of justice. 23.In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] eKLR, the court held that it is the plain and unqualified obligation of every person against whom an order is made to obey it unless and until that order is discharged. Similarly, in Mutitika v Baharini Farm Ltd [1985] KLR 227, the court observed that contempt proceedings are quasi-criminal in nature and therefore require proof to a standard higher than a balance of probabilities though not beyond reasonable doubt. 24.The essential elements that must be established in contempt proceedings are the existence of a valid court order, knowledge or notice of the order by the alleged contemnor, and deliberate or willful disobedience of that order. The burden rests upon the applicant to establish these elements before a finding of contempt can be made. 25.Upon independently reconsidering the pleadings, this court notes that there is no dispute that the orders of 30th May 2024 existed and that the Appellant was aware of them. The dispute centers on whether the Appellant's failure to comply amounted to willful disobedience sufficient to sustain a finding of contempt. 26.Contempt is not established merely by proving non-compliance. The court must be satisfied that the failure to obey the order was deliberate and intentional and that the alleged contemnor had the ability to comply. A finding of contempt cannot be founded on impossibility of performance or circumstances beyond the control of the alleged contemnor. 27.The trial court therefore had a duty to carefully evaluate whether the evidence presented established willful disobedience before invoking its coercive jurisdiction. The determination of that question necessarily requires consideration of the Appellant's defence that he was incapable of complying with the orders, an issue addressed below. 28.In the circumstances of this case, although the existence of the court orders and the Appellant’s knowledge thereof were not in dispute, the finding of contempt could only be sustained upon clear proof of willful and deliberate disobedience, which in turn required a proper interrogation of the Appellant’s alleged inability to comply. The court finds that this crucial inquiry was not sufficiently undertaken, and accordingly, there is no firm basis upon which the finding of contempt can stand. The appeal on this issue therefore succeeds. ii. Whether the trial court properly considered the Appellants’ defence of inability to comply with the court orders 29.The Appellant submits that the trial court failed to properly consider his defence that he lacked possession, custody and control of the motor vehicle and was therefore incapable of surrendering it as directed by the court. He argues that the vehicle had already been surrendered to a third party and that there existed restraining orders which prevented him from recovering or delivering the vehicle. 30.The Respondent maintains that the defence was merely an attempt to avoid compliance and that the Appellant failed to demonstrate genuine inability to obey the court orders. 31.It is a well-established principle that contempt jurisdiction is intended to compel obedience to court orders and not to punish persons for failing to perform acts that are impossible to perform. Where a party demonstrates genuine inability to comply, contempt proceedings ought not to result in punitive sanctions. 32In North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR, the court observed that inability to comply with a court order constitutes a valid defence to contempt proceedings provided that the inability is genuine and supported by evidence. Likewise, courts have consistently held that contempt requires proof of deliberate disobedience and cannot be founded upon impossibility of performance. 33The pleadings show that the Appellant consistently maintained that he no longer had possession or control of the motor vehicle and that it had previously been surrendered to a third party. He further relied on the existence of restraining orders which, according to him, prevented him from taking possession of the vehicle for purposes of complying with the court order. 34These assertions were not mere denials but formed the central basis of the Appellant's defence. The trial court was therefore under an obligation to interrogate whether the Appellant had demonstrated a genuine inability to comply or whether the defence was simply an excuse for deliberate disobedience. 35A court exercising contempt jurisdiction must distinguish between unwillingness to obey and inability to obey. The former attracts sanctions while the latter does not. Failure to undertake that distinction risks converting contempt proceedings into instruments of punishment rather than mechanisms for enforcing compliance. 36Accordingly, the trial court ought to have carefully evaluated the evidence regarding the Appellant's possession, control and capacity to surrender the motor vehicle before concluding that the non-compliance was deliberate and willful. 37In the circumstances of this case, the Appellant’s defence of inability to comply went to the very root of the allegation of willful disobedience and required a thorough and reasoned evaluation by the trial court. This court finds that the said defence was not properly interrogated or adequately determined, with the result that the finding of deliberate disobedience was reached without a full consideration of all material facts. The appeal on this issue therefore succeeds. iii. Whether in the circumstances of the case, the orders allowing the Respondent application and directing the Appellants’ arrest and committal to civil jail were lawful and justified 38Having considered the finding of contempt and the Appellant's defence of inability to comply, the next issue is whether the consequential orders allowing the Respondent's application and directing the Appellant's arrest and committal to civil jail were lawful and justified. 39The power to commit a party to civil jail for contempt is a discretionary power which must be exercised cautiously, judiciously and only where the court is satisfied that contempt has been proved and that less restrictive measures would not secure compliance. 40Courts have consistently recognized that deprivation of liberty is a serious sanction which should only be imposed after strict compliance with the applicable legal requirements and after consideration of all relevant circumstances. The objective of civil contempt proceedings is primarily to secure obedience to court orders rather than to punish the contemnor. 41Where a party raises a credible defence of inability to comply, the court is under a duty to determine that issue conclusively before resorting to coercive measures such as arrest and committal, since contempt jurisdiction cannot properly be exercised against a party who lacks the practical capacity to comply 42In the present case, the orders directing the Appellant's arrest and committal flowed directly from the finding that he had deliberately disobeyed the court orders. The propriety of those orders therefore stands or falls on whether the finding of wilful contempt was properly made upon a full and proper evaluation of the Appellant's defence. 43.The record shows that the Appellant’s defence of inability to comply, grounded on lack of possession, control and capacity over the motor vehicle due to its alleged prior surrender and existing restraining orders, was not sufficiently interrogated before the coercive orders were issued. 44A failure to properly determine whether the Appellant had the practical ability to comply with the court orders undermines the foundation upon which a finding of wilful disobedience can stand. This is because contempt jurisdiction is only properly exercised where a party is shown to have had the capacity to obey the order but chose not to do so. 45In the present case, the coercive orders of arrest and committal were made without a sufficiently resolved finding on whether the Appellant was in a position to comply with the order requiring surrender of the motor vehicle. That unresolved issue went to the root of liability for contempt and could not be assumed against the Appellant. 46Accordingly, the orders directing the Appellant’s arrest and committal to civil jail were premised on an incomplete and insufficiently supported finding of wilful disobedience. In the absence of a properly established basis for contempt, the deprivation of liberty was unjustified. This court therefore finds that the trial court erred in law in issuing the said orders. The appeal on this issue succeeds. iv. Who bears the cost of the suit 47Costs are governed by Section 27 of the Civil Procedure Act, which provides that costs follow the event unless the court, for good reason, orders otherwise. 48The award of costs is discretionary, but that discretion must be exercised judicially and upon consideration of the circumstances of each case. The general rule is that a successful litigant should ordinarily recover the costs incurred in prosecuting or defending the proceedings. 49.In this appeal, the Appellant has succeeded on all the substantive issues raised. The Respondent’s opposition has not been upheld on any of the grounds advanced. 50Accordingly, the Appellant is entitled to the costs of the appeal, to be borne by the Respondent. E. Disposition 51.Having carefully re-evaluated the evidence, the pleadings, the Appellant’s submission and the applicable law, this court makes the following final orders:a.The Appeal is hereby allowed in its entirety.b.The Ruling and Orders of the learned Senior Principal Magistrate (Hon. K. Cheruiyot) delivered on 8th October 2024 in Kisumu CM Succession Cause No. 137 of 2019, are hereby set aside.c.The Respondent’s Application dated 12th July 2024, seeking committal of the Appellant for contempt of court is hereby dismissed.d.The finding of contempt and the consequent orders for the arrest and committal of the Appellant to civil jail are hereby vacated and set aside.e.The Appellant shall have the costs of this appeal, to be borne by the Respondent.f.Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full.It is so ordered. SIGNED BY/FOR:****HON. JUSTICE ABDI M. HASSANKisumu High CourtHigh Court Family Date: 2026-07-14 12:13:53The Judiciary of KenyaDoc IDENTITY: 334178528245160800698324636209Tracking Number:OO27Y92026