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Khaminwa & another (Suing as the legal representative of the Estate of Charles Ford Khaminwa) v Mulama & 6 others (Environment and Land Case 041 of 2022) [2026] KEELC 211 (KLR)

Environment and Land Court
21 January 2026
ANA. Nyukuri
3,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to stop execution of a land judgment and found the defendants in contempt, meaning they now face sentencing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) determined two applications arising from a judgment delivered on 16th June 2025 in a land dispute, in which the defendants were ordered to remove illegal structures, stop interfering with the suit property and grant the plaintiffs vacant possession within 90 days. The defendants' notice of motion dated 18th September 2025 sought leave for Ayata & Omondi Advocates to come on record and stay of execution pending their appeal (Civil Appeal No. E191 of 2025, Court of Appeal). The plaintiffs' application dated 16th October 2025 sought to cite the named defendants for contempt of the decree and commit them to civil jail. On stay, the court applied Order 42 Rule 6, holding that substantial loss is its cornerstone but that imminent eviction alone cannot establish it, since the eviction was itself a consequence of the court's own judgment. The court rejected the defendants' contention that the 90 days meant business days excluding weekends and holidays, holding the grace period was itself a stay that lapsed on 14th September 2025, so the application filed on 18th September 2025 was marked by inordinate delay and was an afterthought. Stay was refused with costs, but leave for the incoming advocates was granted as unopposed. On contempt, the court applied the quasi-criminal standard of proof and the requirements of a clear order, awareness and wilful disobedience, found the decree and penal notice clear and unambiguous, and held the named defendants in deliberate and wilful contempt for failing to vacate and remove structures. They were ordered to appear for mitigation and sentencing on 23rd February 2026.

Questions the Court framed

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

  1. 1.Whether the defendants have met the threshold for grant of stay of execution
  2. 2.Whether the plaintiffs have proved contempt against the defendants

Key legal issues

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01

Whether the defendants met the threshold for stay of execution pending appeal

Holding

Stay declined: no substantial loss shown, application filed after inordinate delay, and no security for due performance of the decree offered.

Reasoning

The court found that the 90-day period granted in the judgment was already a form of stay, which lapsed on 14th September 2025. The application filed on 18th September 2025 was therefore late. Citing authority, imminent eviction alone is not substantial loss, and the 40-year occupation had already been litigated and determined, so it could not be the sole basis for stay. The application was dismissed with costs, save for leave for the new advocates to come on record.

p. 6
02

Whether the plaintiffs proved contempt of the decree

Holding

Contempt proved against the named defendants on the higher quasi-criminal standard.

Reasoning

The decree had clear terms and a penal notice; the defendants admitted awareness of it. Their claim that the 90 days meant business days was rejected as implausible since the judgment made no such exclusion. Having admitted they neither removed structures nor vacated, their disobedience was deliberate and wilful. They were ordered to appear for mitigation and sentencing on 23rd February 2026.

p. 8

Legal principles established

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  • The standard of proof for contempt is higher than the balance of probabilities but below the criminal standard of beyond reasonable doubt.
  • To prove contempt an applicant must show clear and unambiguous order terms, the respondent's awareness of them, and wilful disobedience.
  • Imminent execution or eviction alone does not amount to substantial loss for stay of execution.

Court orders

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  1. 1.The firm of Ayata & Omondi Advocates granted leave to come on record for the defendants in place of andia & Company Advocates
  2. 2.The defendants' application dated 18th September 2025 for stay of execution dismissed with costs
  3. 3.Joseph Mirimo Mulama, Emily Mweresi, Kenyatta Mulama, Anthony Majimbo, Clement Mirimo and Florence Mulama found in contempt of the decree dated 16th June 2025
  4. 4.The contemnors ordered to appear before the court for mitigation and sentencing on 23rd February 2026

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 and Order 9 Rule 9 of the Civil Procedure Rules; section 5 of the Judicature Act (contempt jurisdiction)

Relief refused

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Stay of execution of the judgment of 16th June 2025 pending appeal

No substantial loss proved; inordinate delay in filing the application; the 90-day grace period had already lapsed

p. 6

Costs

The defendants' application dated 18th September 2025 dismissed with costs; the plaintiffs' prayer that costs of the contempt application be met by the cited contemnors was not expressly ruled upon in the final orders.

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.

In the result, Joseph Mirimo Mulama, Emily Mweresi, Kenyatta Mulama, Anthony Majimbo, Clement Mirimo and Florence Mulama are hereby ordered to appear before this court for purposes of mitigation and sentencing on 23rd February 2026.
p. 8Final orders - contempt committal to sentencing
I am not convinced that the defendants have met the threshold for grant of stay of execution of judgment pending appeal and hence save for the order allowing the firm of Ayata & Omondi to come on record for them, their application dated 18th September 2025 lacks merit and is hereby dismissed with costs.
p. 6Dismissal of stay of execution application
It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times.
p. 7Purpose of contempt jurisdiction (as quoted from Econet Wireless)
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
p. 6Meaning of substantial loss

Issues in the judgment

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minor

The ruling states conflicting lapse dates for the 90-day period: 'the 90 days lapsed on 15th September 2025' in the plaintiffs' affidavit, '90 days lapsed on 16th September 2025' in the plaintiffs' contempt affidavit, while the court itself holds 'the stay lapsed on 14th September 2025'.

minor

The contempt application lists five named contemnors but the text describes them as 'the 1st, 2nd, 3rd, 4th, 5th and 6th contemnors', an inconsistency in numbering, and the citation under Order 9 refers to the firm as 'andia & Company Advocates' which appears to be a truncation of the former advocates' name.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khaminwa & another (Suing as the legal representative of the Estate of Charles Ford Khaminwa) v Mulama & 6 others (Environment and Land Case 041 of 2022) [2026] KEELC 211 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/211/eng@2026-01-21

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