https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8063

Lukalo v Lukalo & another (Civil Miscellaneous Application E095 of 2025) [2026] KEHC 8063 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8063 (KLR) Republic of Kenya In the High Court at Kakamega Civil Miscellaneous Application E095 of 2025 S Mbungi, J June 5, 2026 Between Tom Lukalo Applicant and Beatrice Lukalo 1st Respondent Margaret Osolika 2nd Respondent Ruling 1.Before this Court is a Notice of Preliminary Objection dated 4th August 2025 filed by the Respondents in opposition to the Applicant’s Notice of Motion dated 1st July 2025. 2.The Applicant seeks orders that the Respondents be cited and punished for contempt of court arising from their alleged actions in subdividing and dealing with land parcels known as Trans Nzoia/Kipseon/1048 and Trans Nzoia/Kipseon/1532 after the Court of Appeal had allegedly nullified the grant and certificate of confirmation of grant issued in Kakamega High Court Succession Cause No. 408 of 1998. 3.The Respondents oppose the application and raise a preliminary objection on three grounds, namely:I.That this Court lacks jurisdiction to entertain the present application;II.That the application offends the principle of material non-disclosure; andIII. That the application offends the doctrine of sub judice and amounts to an abuse of the court process. 4.The parties filed submissions which I have carefully considered together with the pleadings and the law applicable. Issues For Determination 5.The following issues arise for determination:a.Whether this Court has jurisdiction to entertain the present application.b.Whether the application offends the principle of material non-disclosure.c.Whether the application offends the doctrine of sub judice and amounts to an abuse of the court process. Analysis And Determination Whether this court has jurisdiction to entertain the present application 6.The Applicant’s case is founded entirely upon an allegation that the Respondents disobeyed a judgment and orders issued by the Court of Appeal in Kisumu Civil Appeal No. 95 of 2011 delivered on 11th July 2014. 7.According to the Applicant, the Court of Appeal set aside the grant and certificate of confirmation of grant issued in Kakamega High Court Succession Cause No. 408 of 1998 and referred the dispute back to the High Court for hearing and determination. 8.The Applicant further contends that despite being aware of the judgment of the Court of Appeal, the Respondents proceeded to subdivide and transfer the estate property in the year 2017 on the strength of the nullified grant. 9.The Applicant’s complaint is therefore that the Respondents acted in defiance of orders issued by the Court of Appeal. 10.The Applicant submits that under Section 5 of the Judicature Act, both the High Court and the Court of Appeal possess jurisdiction to punish for contempt and that the Applicant was at liberty to approach either court. 11.The Respondents take a contrary view and contend that where the alleged contempt relates to orders issued by the Court of Appeal, it is the Court of Appeal that should determine whether its authority has been undermined and whether punishment should issue. 12.Having considered the rival positions, I find merit in the Respondents’ argument.Where an allegation of contempt is founded upon breach of orders issued by a particular court, the issue ceases to be merely one of enforcement. It becomes a question of whether the authority and dignity of that particular court has been undermined. 13.In the present case, the orders alleged to have been violated were not issued by this Court. They were issued by the Court of Appeal. 14.The Applicant’s own pleadings repeatedly assert that the Respondents acted contrary to the judgment and orders of the Court of Appeal delivered on 11th July 2014. 15.The Applicant seeks punishment of the Respondents on the basis of their alleged disobedience of those appellate orders.It follows that the Court whose authority is alleged to have been undermined is the Court of Appeal. 16.In my view, the proper forum to determine whether a party has disobeyed orders issued by the Court of Appeal is the Court of Appeal itself. Such a court is best placed to interpret the scope and effect of its own judgment and to determine whether conduct complained of amounts to contempt thereof. 17.In those circumstances, I find that the proper court to determine the alleged contempt is the Court of Appeal. 18.Accordingly, I uphold the preliminary objection on the ground that this Court lacks jurisdiction to entertain the Applicant’s application. Whether the application offends the principle of material non-disclosure 19.Having found that this Court lacks jurisdiction, the next question is whether it should proceed to determine the remaining grounds raised in the preliminary objection. The answer must be in the negative. 20.The issue of material non-disclosure would require the Court to evaluate the factual circumstances surrounding the filing of the application and determine whether the Applicant failed to disclose material facts. 21.Such an inquiry would necessarily involve consideration of matters going beyond the jurisdictional issue,having found that it lacks jurisdiction, this Court cannot embark upon such an exercise. Whether the application offends the doctrine of sub judice and amounts to an abuse of the court process 22.The same reasoning applies to the final ground raised in the preliminary objection. 23.Whether proceedings are sub judice requires examination of the existence of other proceedings, the parties involved, the issues in dispute and the extent of similarity between the proceedings. 24.Likewise, the question whether proceedings amount to an abuse of the court process ordinarily requires consideration of the factual circumstances of the case. 25.These are matters that can only be determined by a court properly seized of jurisdiction. 26.Having already found that this Court lacks jurisdiction to entertain the Applicant’s application, it would be inappropriate for the Court to proceed and pronounce itself on these issues. 27.Consequently, I decline to determine the questions of sub judice and abuse of process. 28.Having carefully considered the Notice of Preliminary Objection dated 4th August 2025, the submissions of the parties and the applicable law, I come to the following conclusions:a.The Applicant’s Notice of Motion dated 1st July 2025 is founded exclusively upon allegations that the Respondents disobeyed orders issued by the Court of Appeal in Kisumu Civil Appeal No. 95 of 2011.b.The authority alleged to have been undermined is that of the Court of Appeal.c.The proper forum for determination of allegations of contempt arising from breach of orders issued by the Court of Appeal is the Court of Appeal itself.d.This Court consequently lacks jurisdiction to entertain the Applicant’s application.e.Having found that it lacks jurisdiction, this Court cannot proceed to determine the remaining issues concerning material non-disclosure, sub judice or abuse of process.f.In the result, the Notice of Preliminary Objection dated 4th August 2025 is hereby upheld.g.The Applicant’s Notice of Motion dated 1st July 2025 is hereby struck out for want of jurisdiction.h.All beneficiaries availed, each party to bear its own cost of the preliminary objection and application.i.Orders accordingly.j.Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 5TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaMr. Munyendo for the Applicant present online.