Papiyio Investments Ltd v Murero & 6 others
The bottom line
#Kenya's Court of Appeal dismissed a company's bid to punish rivals for contempt, ruling you cannot defy an order that did not yet exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is an improper omnibus application
- 2.Whether prayers already determined in the previous application are res judicata or an abuse of process
- 3.Whether damages can be awarded on an interlocutory application
- 4.Whether the Court of Appeal can stay or strike out proceedings before the BPRT, a subordinate tribunal
- 5.Whether the Court of Appeal can punish contempt of orders issued by the ELC (a court of equal status)
- 6.Whether final orders (cancellation of register entries, restoration to possession) can issue at an interlocutory stage
- 7.Whether non-parties (5th, 6th and 7th respondents) can be cited for contempt
- 8.Whether contempt can be founded on acts predating the order alleged to have been breached
- 9.Whether the 1st to 4th respondents established contempt of the 14th January 2026 status quo order
Key legal issues
#Whether the application was an improper omnibus application
The Court agreed the application was omnibus, bundling multiple distinct reliefs, which obscures the relief sought and bypasses specific procedural requirements.
The Court defined an omnibus application as one seeking multiple, often unrelated reliefs, warned that bundling distinct prayers makes it hard for respondents to answer, and stressed that the Rules exist to ensure fair and orderly ventilation of disputes. It found the applicant had mischievously replicated reliefs from its earlier, already-determined application.
Whether the Court of Appeal can punish contempt of an ELC order
No. Each tier of the superior courts has independent jurisdiction to police its own orders; contempt proceedings for a High Court or equal-status court order must be filed in that court.
Reading Section 5(1) of the Judicature Act with precedent, the Court held that each superior court possesses distinct jurisdiction to protect its own orders. The Court of Appeal's role regarding lower-court contempt is strictly appellate, not original; it lacks original jurisdiction to monitor compliance with orders it did not issue.
Whether contempt can be founded on acts predating the order
No. Civil contempt is quasi-criminal and requires mens rea plus a lawful, unambiguous order existing at the time of the alleged violation; ex-post facto contempt is unknown to law.
The Court noted the applicant's complaints were premised on acts occurring in 2024 and 2025, before the 14th January 2026 status quo order. A person cannot intend to defy a judicial command not yet issued; there was no lawful barrier in place to breach at the relevant time. On this ground alone the contempt claim against the 1st to 4th respondents failed.
Whether non-parties can be cited for contempt
No. Contempt sanctions cannot be enforced against a person who was not a party, had no notice, or was not specifically targeted by the penal consequences of the order.
The 5th, 6th and 7th respondents were not parties before the ELC or this Court. Because contempt proceedings are quasi-criminal, natural justice demands strict compliance with identity and service. Grave consequences including loss of liberty or property cannot be casually visited on a person unless the order explicitly and unambiguously required that specific person to act or abstain.
Whether damages could be awarded on the motion
No. Damages are a substantive remedy, must be specifically pleaded and strictly proved, and can only be awarded through a substantive suit, not an interlocutory application.
An affidavit-supported application is not a formal pleading for assessment of damages; assessment requires hearing witnesses and testing credibility under cross-examination, impossible on a motion. Awarding damages on a motion would deny the opposing party a fair trial. Further, this being an appellate court, the issue was not canvassed and determined by the trial court.
Whether the Court of Appeal could stay or strike out the BPRT proceedings
No. The Court of Appeal lacks direct supervisory jurisdiction over subordinate courts and tribunals; such a stay can only be reached indirectly through an appeal from the High Court or a court of equal status.
Under Article 165(6) of the Constitution, supervisory jurisdiction over subordinate courts vests exclusively in the High Court and courts of equal status. A party aggrieved by a tribunal's decision must first appeal or seek judicial review in the High Court or equal-status court, then appeal to the Court of Appeal, whose Rule 5(2)(b) powers operate only pending an appeal before it. The underlying appeal did not arise from the BPRT.
Legal principles established
#- The Court of Appeal cannot punish contempt of orders issued by the High Court or courts of equal status; each superior court polices its own orders, and its role regarding lower-court contempt is appellate only.
- The Court of Appeal has no direct supervisory jurisdiction over subordinate courts and tribunals; supervisory jurisdiction is vested exclusively in the High Court and courts of equal status.
- There is no retrospective or ex-post facto contempt; a contempt application founded on acts completed before the order was made must fail.
- A court order cannot bind or be enforced by contempt against a person who was not a party, had no notice, and was not targeted by the penal consequences of the order.
- Damages are a substantive remedy that can only be awarded through a substantive suit, never on an interlocutory or miscellaneous application.
- A litigant cannot revive prayers already sought, evaluated and determined in a previous application in the same suit; such resurrection is res judicata and an abuse of process.
- An interlocutory application must not make conclusive or final findings of fact or law or grant final relief while the main suit or appeal is pending.
Court orders
#- 1.The application dated 23rd June 2026 is dismissed
- 2.Costs of the application awarded to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal (prior interlocutory ruling of the same Court)
- Civil Appeal (Application) No. E124 of 2025 (ruling dated 14th January 2026, Warsame, Mativo & Gachoka, JJA)
- Jurisdiction invoked
- Rules 3, 43 and 44 of the Court of Appeal Rules, 2022; Section 5 of the Judicature Act; Rule 81.4 of the English Civil Procedure Rules; inherent jurisdiction of the Court
Relief refused
#Citation and conviction of all respondents for contempt of the 14th January 2026 status quo order and the ELC order of 23rd September 2025
Acts complained of predated the orders; no ex-post facto contempt; Court cannot punish contempt of another court's orders
Injunction restraining interference with applicant's possession
Replicates prayers already determined in the previous application; res judicata/abuse of process
Vacation of the property by the 5th, 6th and 7th respondents and restoration of the applicant to possession
Final orders cannot issue at interlocutory stage; respondents were not parties to the proceedings
Cancellation of register entries and rectification of title
Final relief unavailable on an interlocutory application
Striking out of BPRT Case No. E008 of 2026
Court of Appeal lacks direct supervisory jurisdiction over subordinate courts and tribunals
Compensation of Kshs.295,802,430 and USD 16,631,700 for losses from alleged contempt
Damages cannot be awarded on an interlocutory application; must be pleaded and proved in a substantive suit
Committal to civil jail or fines in default of compliance
Follows dismissal of the contempt claim
Costs on a full indemnity basis
Application dismissed; costs awarded to respondents in the ordinary course
Costs
The application dated 23rd June 2026 is dismissed with costs to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the application dated 23rd June 2026 is devoid of merits and it is hereby dismissed with costs to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents.
this Court cannot directly entertain an application to punish or commit a person for the contempt of an order issued by the High Court or courts of equal status.
the law does not recognize retrospective or ex-post facto contempt.
An order cannot create a compliance obligation out of thin air for a non-party; if the underlying jurisdiction or party enjoinder is defective, a purported breach cannot attract criminal or contempt sanctions.
They can only be pleaded, strictly proved and awarded through a substantive suit (initiated by a plaint or, where legally permitted, a petition), but never through an interlocutory or miscellaneous application.
A litigant cannot seek prayers in a new application if those exact prayers were already sought, evaluated and determined in a previous application in the same suit.
Under Article 165 (6) of the Constitution, supervisory jurisdiction over subordinate courts is vested exclusively in the High Court and courts of equal status.
Issues in the judgment
#Ruling states the 14th January 2026 order directed submissions within 21 days, but the respondents' affidavit summarised without correction says 14 days were granted
Counsel's citation of Hadkinson rendered as 'Hadkinso vs. Hadkinson' in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Papiyio Investments Ltd v Murero & 6 others", Case Analysis (2026). Civil Appeal (Application) E124 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1751/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.