Jeremiah’s Creek Ltd v Ndungu (Environment and Land Case E103 of 2021) [2026] KEELC 5295 (KLR)
The bottom line
#A Kenyan court refused to jail a landowner for ignoring an eviction judgment, ruling that contempt is not a shortcut—ordinary execution steps must come first.
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 Law firm of Messrs. Githiomi Mungai Advocates LLP is properly on record for the Plaintiff/Applicant post-Judgment
- 2.Whether the Notice of Motion application dated 16th February, 2026 seeking to cite the Defendant/Respondent for contempt of court for wilful disobedience of the Judgment delivered on 4th August, 2025 and the consequential Decree issued on 9th December, 2025 is merited
- 3.Whether the Plaintiff/Applicant has demonstrated sufficient grounds to warrant committal of the Defendant/Respondent to civil jail or the imposition of other sanctions as the Court may deem fit
- 4.Whether the Plaintiff/Applicant has established sufficient basis for the intervention of the Officer Commanding Station (OCS), Diani Police Station, and/or other police officers to provide security and maintain peace during the execution of the eviction orders
- 5.Whether the Notice of Motion application dated 18th February, 2026 by the Defendant herein has any merit – on meeting the threshold of being granted temporary injunctive orders and the Stay of Execution of the Judgement and the Decree delivered by this Honourable Court on 4th Day of August, 2025 pending the preferring of an appeal before the Court of Appeal
- 6.Who will bear the costs of the Notice of Motion applications dated 16th and 18th February, 2026
Key legal issues
#Whether Githiomi Mungai Advocates LLP was properly on record post-judgment
Yes - by expressly seeking leave to come on record post-judgment, the firm complied with the mandatory procedure under Order 9 Rule 9, and leave was granted
Order 9 Rules 5, 9 and 10 require that a change of advocates after judgment be effected either by court order on application with notice to all parties, or by consent of the outgoing advocate. The rule protects outgoing advocates from being displaced without settlement of costs. Because the incoming firm's application expressly sought leave, the representation was regular, subject to the court granting the prayer before considering substantive contempt and enforcement prayers.
Whether the Defendant was in contempt of the Judgment of 4th August 2025 and the Decree of 9th December 2025
The court found the elements of wilful disobedience made out on the evidence, but declined to cite the Defendant for contempt in the final orders because execution remedies had not been exhausted
The judgment required vacation within 120 days; the decree issued on 9th December 2025; the judgment and decree were posted conspicuously on the property gate on 10th February 2026, establishing knowledge without personal service. Continued occupation was deliberate. However, the court held that contempt is not among the modes of execution under Section 38 of the Civil Procedure Act and Order 22, and the decree-holder never exhausted those ordinary remedies, rendering the contempt citation unsustainable.
Whether the Defendant's application for stay of execution and injunction pending appeal was merited
Yes - stay of execution and temporary injunctive orders were granted pending appeal, conditioned on the Defendant depositing Kshs. 5,000,000 as security within 30 days
The court observed both parties had, in submissions, accepted the need to preserve the suit property pending the intended appeal to the Court of Appeal. Rather than belabour the point, the court found it just, reasonable and equitable to grant the injunctive and stay orders, with the deposit of Kshs. 5 million in an escrow joint account as security for due performance of the decree; failure to deposit within 30 days causes automatic dismissal of the stay application.
Whether the Defendant's reliance on the pending Notice of Appeal shielded her from compliance
No - the filing of a Notice of Appeal does not operate as an automatic stay; the judgment remained enforceable absent a stay order
Order 42 Rule 6(4) merely defines when an appeal is deemed filed; it does not suspend execution. Order 42 Rule 6(1) provides that no appeal shall operate as a stay except so far as the court appealed from may order. As no stay had been granted at the material time, the judgment remained binding, and the appeal could not be used as a shield against compliance.
Legal principles established
#- A change of advocates after judgment can only be effected with leave of the court on application, or by consent between the outgoing and incoming advocates, under Order 9 Rule 9
- Filing a Notice of Appeal does not operate as an automatic stay of execution; stay is a discretionary remedy that must be specifically sought and granted
- Contempt of court is not a mode of execution of a decree; a decree-holder must first exhaust the execution remedies available under Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules before resorting to contempt proceedings
- Stay of execution pending appeal may be granted on conditions, including security for due performance of the decree
Court orders
#- 1.Notice of Motion application dated 16th February, 2026 partially found to have merit and allowed under stringent terms and conditions
- 2.Notice of Motion application dated 18th February, 2026 found to have merit and allowed under terms and conditions stipulated
- 3.Leave granted to the Law firm of Messrs. Githiomi Mungai Advocates LLP to come on record for the Plaintiff/Applicant post-Judgment
- 4.Court declined to cite the Defendant/Respondent, M/s. Tabitha Ndungu, for Contempt of Court for the reason that the Applicant never exhausted all execution remedies available under Section 38 of the Civil Procedure Act and Order 22 of the Rules
- 5.Stay of Execution of the Judgment delivered on 4th August, 2025 and the Decree issued on 9th December, 2025 issued pending hearing and final determination of the Appeal before the Court of Appeal, subject to pre-conditions
- 6.Defendant directed to deposit Kshs. 5,000,000.00 in an interest-earning escrow joint bank account in the names of Messrs. Githiomi Mungai Advocates and Messrs. Tindika & Company Advocates within 30 days, failing which the application dated 18th February, 2026 stands dismissed automatically
- 7.Costs of the application dated 16th February, 2026 borne by the Defendant/Respondent; each party to bear own costs on the application dated 18th February, 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 38 of the Civil Procedure Act, Cap. 21; Order 9 Rule 9 and Order 22 of the Civil Procedure Rules, 2010; Section 5 of the Judicature Act, Cap. 8; Section 29 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Citation of the Defendant for contempt of court and committal to civil jail
The court, despite finding contempt made out in the analysis, declined the relief because the decree-holder had not first pursued the ordinary execution remedies; contempt is not a mode of execution under Section 38 of the Civil Procedure Act or Order 22 of the Civil Procedure Rules
Direction to the OCS Diani Police Station to provide security during execution of the eviction
No such direction appears in the final orders; with a stay of execution granted, no eviction was to be executed pending appeal
Costs
The costs of the Notice of Motion application dated 16th February, 2026 shall be borne by the Defendant/Respondent while each party will bear their own costs onto the Notice of Motion application dated 18th February, 2026.
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.
THAT the Notice of Motion application dated 16th February, 2026 be and is hereby partially found to have merit and thus allowed under the stringent terms and conditions with time frames stipulated herein below.
THAT the Notice of Motion application dated 18th February, 2026 be and is hereby found to have merit and thus allowed under the terms and conditions stipulated herein below.
THAT leave be and is hereby granted to the Law firm of Messrs. Githiomi Mungai Advocates LLP to come on record for the Plaintiff/Applicant Post - Judgment.
THAT the Honourable Court declines cite the Defendant/Respondent, M/s. Tabitha Ndungu to be cited for Contempt of Court orders allegedly for willfully disobeying the Judgment delivered on 4th August, 2025 and the Decree issued on 9 th December, 2025 for being unsustainable taking that the Applicants never exhausted all the execution remedies available under Section 38 of the Civil Procedure Act nor Orders 22 of the Rules.
THAT the Defendant directed to deposit a sum of Kenya Shillings five Million (Kshs. 5, 000, 000.00/=) in an interest earning Escrow Joint bank account in reputable commercial and financial institution in the names of Messrs. Githiomi Mungai Advocates and Messrs. Tindika & Company Advocates WITHIN THE NEXT (30) DAYS, as security for the due performance of the Decree
THAT the costs of the Notice of Motion application dated 16th February, 2026 shall be borne by the Defendant/Respondent while each party will bear their own costs onto the Notice of Motion application dated 18th February, 2026.
It is now well established that the issue of Costs is at the discretion of the Court.
Issues in the judgment
#Internal contradiction between the analysis and the final orders: the court expressly finds contempt and committal merited in the body of the ruling, yet in the disposition declines to cite the Defendant for contempt on the ground that execution remedies were not exhausted
The issue numbering in the analysis is inconsistent: the stay/injunction issue is labelled 'ISSUE No. g)' and the costs issue 'ISSUE No. e)' even though six issues (a)-(f) were framed
Dates of the two applications are inconsistently stated: the 1st Defendant's application is described as dated 18th February, 2026 in some passages and 12th February, 2026 in others; the Plaintiff's supporting affidavit is dated 16th February, 2026 in one passage and 'even date' with a blank in another
The judgment recites that a Decree was issued on 9th December, 2025, while elsewhere stay is discussed on the assertion that the Decree was yet to be issued
The court's reference to the plaintiff's application date within the framing of issues omits the date ('dated …………and 18th February, 2026'), and the disposition makes no order on the prayer for OCS police assistance despite upholding it under Issue (d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah’s Creek Ltd v Ndungu (Environment and Land Case E103 of 2021) [2026] KEELC 5295 (KLR)", Case Analysis (2026). ELC Case No. E103 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5295/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.