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Court of AppealDismissedCivil Appeal (Application) E064 of 2023

Islamic Foundation v Aly (as trustee of the Wakf Properties of Ali Bin Mohamed alias Muses Mohamed) & 2 others

Court of Appeal
19 December 2025
2,699 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) dismissing an application by the Islamic Foundation to cite the respondents for contempt of the Court of Appeal's status quo orders of 3rd February 2023, issued pending the respondents' appeal against the ELC judgment (Naikuni, J, 18th October 2022) which had declared the respondents capable of granting the applicant 50 acres of Wakf land. The applicant alleged that the respondents' erection of a fence on the suit property in December 2024 breached the status quo order. The respondents explained that the fence was erected on police advice to secure the property against invasions by third parties, who had fraudulently subdivided it, lit fires and begun construction, and that the fence did not interfere with the 50 acres claimed. Applying Mutitika v Baharini Farm Ltd and Mukuha v Gashwe, the court held that the status quo order was couched in broad terms and did not prohibit fencing or protective acts; that the respondents had knowledge of the order but did not act willfully or with mala fides; and that the applicant failed to prove deliberate and intentional violation of the court's authority to the elevated standard of proof in contempt proceedings (higher than balance of probabilities, almost but not exactly beyond reasonable doubt). The motion was dismissed with no order as to costs, each party bearing its own costs given the public-trust nature of the Wakf and the Islamic institution involved. The underlying appeal remains pending; this ruling does not disturb any decision below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents were in contempt of the status quo orders issued by the Court of Appeal on 3rd February 2023 by erecting a fence on the suit property
  2. 2.Whether the applicant proved contempt to the required standard, namely willful disobedience with mala fides

Key legal issues

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01

Whether the status quo order was sufficiently clear to sustain a contempt charge

Holding

The order was couched in broad terms and did not prohibit fencing or acts to safeguard the property, so it could not found a contempt finding

Reasoning

The court applied the Carey v Laiken elements: the order must clearly and unequivocally state what should and should not be done. The status quo order directed maintenance of the status quo on the ground in broad terms without specifying permitted or prohibited acts. Since it did not prohibit fencing or protective measures against third-party invasion, the respondents could not be in contempt of it.

p. 5
02

Whether the respondents acted willfully and with mala fides

Holding

The respondents acted bona fide to protect the property from invasions, on police advice, and without intent to disobey; willfulness and mala fides were not established

Reasoning

The respondents deposed that third parties had fraudulently subdivided and invaded the property, lit fires and constructed structures; police advised fencing for the safety of children and worshipers. The fence did not interfere with the 50 acres claimed. The court found no willful disobedience or mala fides, and the applicant failed to show deliberate and intentional violation of the court's dignity, repute or authority.

p. 5
03

Whether the applicant discharged the elevated standard of proof in contempt proceedings

Holding

The applicant did not prove contempt to the standard of higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Restating Mutitika v Baharini Farm Ltd, the court held contempt is quasi-criminal and the standard of proof is elevated. Given the ambiguity of the order and the respondents' bona fide protective purpose, the applicant failed to discharge that burden, and the motion necessarily failed.

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Refusal to obey a court order must be both willful and mala fide; bona fide non-compliance, even if unreasonable, does not constitute contempt
  • A party cannot be held in contempt of an order that is unclear or couched in broad terms; the order must clearly and unequivocally state what should and should not be done

Court orders

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  1. 1.The applicant's notice of motion dated 5th March 2025 is dismissed
  2. 2.Each party shall bear their own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Environment and Land Court, Mombasa
ELC Case No. 219 of 2016
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 51 of the Civil Procedure Rules; section 5 of the Judicature Act, Cap 8 (contempt jurisdiction of the Court of Appeal)

Relief refused

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Orders summoning the respondents to show cause why they should not be held in contempt and committing them to civil jail for up to six months

The applicant failed to prove contempt to the required standard; the order was broadly couched, did not prohibit fencing, and the respondents acted bona fide without mala fides

Costs

Each party shall bear their own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the order did not prohibit fencing or any act intended to safeguard the suit property from trespass or invasion by third parties;
p. 5Scope of the status quo order
the applicant did not show that the offence complained of was committed, not by mere disregard of the court order, but by the deliberate and intentional violation of the court's dignity, repute or authority.
Failure to prove contempt
Accordingly, we reach the inescapable conclusion that the applicant's motion fails and is hereby dismissed.
p. 5Disposition - dismissal of contempt application
Considering the nature of the dispute and the parties involved, to wit, a public trust in the nature of a Wakf and an Islamic institution, both of which were established in the general interest of the Islamic community, we hereby order and direct that each party shall bear their own costs of the application.
p. 5Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Islamic Foundation v Aly (as trustee of the Wakf Properties of Ali Bin Mohamed alias Muses Mohamed) & 2 others", Case Analysis (2025). Civil Appeal (Application) E064 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2242/eng@2025-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.