https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12132

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **PETITION 5 OF 2021** **IN THE MATTER OF: ARTICLES 1(1). (2). (3B) &(4A), 2(5) AND (6). 10,19,20.21.22.23.73.75,159 AND 165 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 12,13,14,28,29.31,35.38.40,43,47 AND 50 OF THE CONSTITUTION OF KENYA 2010 AND SECTIONS 5,8,9,11 OF THE REGISTRATION OF PERSONS ACT CAP 107 OF THE LAWS OF KENYA** **AND** **IN THE MATTER OF KENYA NATIONAL IDENTITY CARD NO. 11304301** **BETWEEN** **UMMI NECHESA WANGA------------------------------------------------------PETITIONER** **AND** **PRINCIPAL REGISTRAR OF PERSONS------------------------------------1ST RESPONDENT** **MELISA NECHESA OSANYA** **ALIAS UMMI NECHESA WANGA--------------------------------------2ND RESPONDENT** **THE ATTORNEY GENERAL** **---------------------------------------------3RD RESPONDENT** **RULING** 1. Before this Court is are two applications for determination. The first one is the Petitioner/Applicant’s Notice of Motion dated 3rd April, 2026 brought under Article 23 &159 of [the Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution), Sections 5 of the Judicature Act and all other enabling provisions of the law. 2. The Second application is the 2nd Respondent’s /Applicant’s Notice of Motion dated 7th May, 2026 brought under Order 40 Rule 1 & 2 and order 51 Rule 1 of the Civil Procedure Rules, Section 3A, 63 (e), 1A and 1 B of the Civil Procedure Act, Article 165 (6) of [the Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) of Kenya, and all other enabling provisions of the law. **The Petitioner/Applicant’s Application dated 3rd April, 2026** 1. Before going to the merits of this application, is important to note that Sections 5 of the Judicature Act was repealed/deleted by the Contempt of Court Act. Hence, the correct enabling law for institution of proceeding for civil contempt of court orders is Section 4 (1)(a) of the Contempt of Court Act as opposed to Sections 5 of the Judicature Act. T 2. In the motion dated 3rd April,2026 the Petitioner sought the following orders: 1. THAT this application be certified urgent and be heard inters partes on priority basis. *(Spent)* 2. THAT this Honourable Court be pleased to find the 2nd Respondent guilty of contempt of court for willful disobedience of the orders issued on 16th July,2021 and extended pending the determination of this Petition. 3. THAT the said contemnor be committed to Civil Jail for a term not exceeding six (6) months or be subjected to such sanction as this Honourable Court deems fit. 4. THAT contemnor be ordered to purge the contempt forthwith by; 3. Ceasing any use of the Petitioner’s Identity. 4. Withdrawing any proceedings filed using the identity 5. Filing an affidavit of compliance. 1. THAT pending determination of this application, this Honourable Court be pleased to issued interim orders restraining the contemnor from further use of the petitioner’s Identity in any forum, including Courts, Hospitals, IEBC, Banks, NTSA, SHA, Death and Birth Offices, National Registration Bureau offices or administrative processes.*(Spent)* 2. THAT the inspector general of Police do ensure enforcement of the Court Orders. 3. THAT costs of this application be borne by the contemnor. 6. The application is premised on the grounds set out on its face and in the supporting affidavit sworn by the Petitioner, Ummi Nechesa Wanga. 7. The Application is opposed through the 2nd Respondent’s replying affidavit sworn on 13th May,2026. 8. I have considered this application, the response and the submissions filed by the Petitioner on this application. By the time of writing this ruling, no submission have been filed for the Respondent. 9. The Test for considering Contempt of Court matters is well established in law as was observed by the Court of Appeal in **Kenya National Union of Teachers & 2 others v Teachers Service Commission [2018] KECA 214 (KLR);-** ***“…it is now trite law that contempt of court proceedings as was explicitly stated in the case of Mutitika versus Baharini Farming (supra), are quasi- criminal in nature. The standard of proof applicable in such proceedings is therefore higher than that obtaining in ordinary civil claims which is on a balance of probabilities, but not as high as beyond reasonable doubt obtaining in criminal proceedings.”*** 1. In authority cited above the Court of Appeal held that there is a four-fold test that the courts ought to observe; - 2. *The first test is the determination of the existence of the order (s) made by a court of competent jurisdiction and which were allegedly transgressed.* 3. *The second test is the identification of the addressee (s) of the order allegedly transgressed* 4. *The 3rd test is the determination of whether the orders allegedly transgressed required the addressee (s) to do or to refrain from doing something.* 5. *The 4th test deals with the determination of the addressee’s knowledge of both the existence of the orders as well as the requirements in such orders as to what the addressee (s) should or should not do.* # Issues for Determination 1. This application raises a fairly straight forward issue for determination; - **Whether the 2nd Respondent is in contempt of court orders?** 1. Notably, the orders sought by the Petitioner prayers 1 and 2 in this ruling “a” and “e”, respectively, were sought in the interim, pending hearing and determination of the application hence are both spent. **Analysis and determination** 1. I have carefully perused the court record to establish the obtaining position on the order of this court that issued on 16th July,2021 and subsequent orders affecting the same. On the said date, the Learned Judge Hon. W.M. Musyoka,J. issued the follows *ex-parte* orders with regard to the Petitioner/Applicant’s motion dated 12th July,2021;- # *The motion and petition dated 12th July,2021 to be served;* # *The matter shall be mentioned on 16th September,2021 for directions;* # *In the meantime, there shall be interim orders in terms of prayers 2 and 3 of the motion till 16th September,2021.* 1. In the Application that was before the judge for directions was brought under a certificate of urgency. The Petitioner has sought the following order under the said prayers 2 and 3;- *(2) THAT this Honourable Court be pleased to suspend the 2nd Respondent’s use of Kenya Civil Identity Card Number 1\*\*\*\*301 or its equivalent of Huduma Card in any manner whatsoever pending the hearing and determination of this Application inter-partes*. *(3) THAT this Honourable Court be pleased to stay and/or suspend any criminal proceedings against the Applicant pending the hearing and determination of the main Petition in this matter.* 1. The court record further indicates that on 16th September,2021 when the matter came up before the judge for mention directions *inter partes*, the application was not opposed and was thus allowed as prayed. The parties agree to proceed with the hearing and determination of the main application. 2. The effect of allowing the application as prayed is that the Petitioner/Applicant is protected from *any criminal proceedings against pending the hearing and determination of the main Petition in this matter*in terms of the prayer 3 of the application then under consideration. However, prayer 2 was sought in the interim, *pending the hearing and determination of this Application inter-partes.* Consequently, the orders of the Court suspending the 2nd Respondent’s use of Kenya Civil Identity Card Number 1\*\*\*\*301 or its equivalent of Huduma Card lapsed on the same day the application was allowed as prayed inter-partes. 3. To this end, the Court finds that contrary to the Petitioner/Applicant’s contentions in the instant application there are no injunctive orders in place that were issued by this court on 16th July, 2021 that restrains the 2nd Respondent from using the Petitioner’s identity and particularly to; - 4. File a road traffic claim using the Petitioner’s identity 5. Seek medical treatment using the same identity 6. Continuing to present herself as the Petitioner. 7. In the premises, the Petitioner/Applicant has not demonstrated that the order upon which this application is grounded exists in the first place. The court thus does not need to go any further to find out if the 2nd Respondent is in contempt of the court orders issued on 16thJuly,2021 for the orders long lapsed. 8. In light of the foregoing, the Court makes the following orders: 1. The Application dated 3rd April,2026 is not merited and is hereby dismissed. 2. Costs shall abide the outcome of the petition. 3. Right of Appeal 30 days explained. **The 2nd Respondent’s /Applicant’s Application dated 7th May, 2026** 1. In the motion dated 7th May,2026, the 2nd Respondent/Applicant sought the following orders; - 1. THAT this application be certified urgent and be heard exparte in the first instance. *(Spent)* 2. THAT this Honourable Court be pleased to stay proceedings and/or further proceedings relating to application dated 3rd April,2026 filed by the Petitioner/Respondent pending hearing and determination of this application interparties. *(Spent)* 3. THAT this Honourable Court be pleased to stay proceedings and/or further proceedings relating to application dated 21st April,2026 in Moiben MCCC No. E049 OF 2026 filed therein by the Petitioner pending hearing and determination of this application interparties. *(Spent)* 4. THAT this Honourable Court be pleased to exercise its supervisory jurisdiction under article 165 (6) of the Constitution and carefully examined the application dated 21st April,2026 filed in Moiben MCCC No. E049 OF 2026 alongside the application dated 3rd April,2026 and if the court is satisfied that both applications raise issues of a similar nature, this honourable court be pleased to consolidate both applications and determine the applications. 2. The application is premised on the grounds set out on its face and in the supporting affidavit sworn by the 2nd Respondent/Applicant Melisa Nechesa Osanya alias Ummi Nechesa Wanga. 3. In a nutshell, the 2nd Respondent/Applicant contends that the application dated 3rd April,2026, which is now determined hereinabove, is similar to the Petitioner other application dated 21th April,2026 that is/was pending before the Lower Court in Moiben MCCC No. E049 OF 2026. 4. I have considered this application, the responses and the submissions filed on this application. 5. This Court has looked at the draft of said application dated 21th April,2026 that is attached to the supporting affidavit thereof and is not persuaded that the two applications are similar in nature. The Application dated 3rd April,2026 (hereinabove) and the reliefs sought is categorically on an alleged contempt of court specific court orders. Contrary to the 2nd Respondent/Applicants contentions, the issue of contempt of court orders is not central to the Application dated 21st April,2026. 6. For the avoidance of doubt, the reliefs sought by the petitioner in the amended application dated 21st April, 2026 in Moiben MCCC No. E049 OF 2026 are as follows; - 1. This application be certified urgent and be heard exparte in the first instance. 2. This Honourable Court be pleased to stay the hearing of the main or further hearing of the mains suit herein until this application is heard and determined. 3. The Applicant be joined as an interested party to this suit. 4. Pending hearing and determination of this suit, the Plaintiff be restrained from using the Applicant’s identity particulars including but not limited to the Applicant’s name and/or identity card no 11304301, in prosecuting this claim. 5. The Plaintiff be directed to disclose and regularize her true legal identity for purposes of these proceedings within such a time as the Court shall direct. In default of compliance, there shall be a stay of further proceeding in this suit pending compliance. 6. Any settlement, judgement or compensation arising from this suit shall not be released or enforced in favour of the Plaintiff under the disputed identity pending the determination of the issue of identity in High Court Petition No. 005 of 2021. 7. The reliefs sought by the petitioner in the application dated 3rd April, 2026 in this petition are reiterated in the earlier ruling on this consolidated ruling therefore is no need to repeat the same. 8. The Trial/Lower Court is vested with jurisdiction to ably deal with the application dated 21st April,2026 and determine the same. If any party is aggrieved by the outcome, that party is a liberty to approach this court on appeal. It is only this way that this court’s jurisdiction can be probably invoked with regard to the application dated 21st April,2026. 9. This court has pronounced itself the application before it on the allegations of contempt of court orders, it will be proper to give the lower court a chance to address the application dated 21st April,2026 that is before it. In the event, if one is aggrieved by any determination/directions thereof, the party can approach this court for appropriate relief(s). As was ably held by the Court of Appeal in **Defence Forces Council & 6 others v Gabriel Kirigha Chawana & 26 Others [2015] KECA 905 (KLR)**,- ***“Thus in its supervisory jurisdiction, the High Court must maintain a delicate balance, distinguishing its role of an arbiter from that of an overseer whose mandate is to consider and review the procedure and conduct of proceedings in the subordinate courts with a view to determining the legality or otherwise of the process, including any actions undertaken without jurisdiction. The supervisory jurisdiction is not intended to usurp the role of the tribunal but to ensure that the inferior tribunal acts within its bounds.”*** 1. As it stands, the there is no substantive application that has been made to this court seeking to stay the proceeding in Moiben MCCC No. E049 OF 2026 pending determination of the petition herein for this Court’s consideration. What the 2nd Respondent/Applicant fundamentally sought in the instant application is a consolidation the application on contempt of court orders before this court with another one before the subordinate court which this court finds that it lacks merit. 2. In light of the foregoing, the Court makes the following orders: 1. The Application dated 7th May 2026 is not merited and is hereby dismissed. 2. Costs shall abide the outcome of the petition. 3. Right of Appeal 30 days explained. 4. Mention 24.9.2026. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 31ST DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angog’a/Velma Mr. Macelina for the Applicant present online. Ms Were for the Respondent present online. Petitioner, absent.