Mbaya v Nkaboo & another

the title of the suit land into the name of the applicant within 30 days, and upon the said transfer, the status quo be maintained. 3. 4. The 1st respondent did not transfer the title within the stipulated time, which prompted the applicant to le a motion dated 12th October 2020, seeking orders that the 1st respondent be held in contempt of the consent order of 10th March 2020. In a ruling delivered on 23rd September 2022, the Court found her to be in contempt and expressed as follows: “ 10. We nd and hold that the 1st respondent is guilty of contempt of this Court’s order dated 10th March 2020 and order her committed to civil jail for four (4) months. We hereby direct that the Ocer Commanding Chogoria Police Station or any other police station within the precincts of the 1st respondent’s residence to arrest and escort the 1st respondent, Dinah Kawira Nkabo, to Meru Chief Magistrates’ Court for issuance of the committal documents. 11. The Deputy Registrar of this Court is hereby directed to execute all the necessary documents and instruments and eect transfer of the suit property, Ntima/Igoki/2778 to the applicant. The 1st respondent shall bear the costs of this application. It is so ordered.” Vide an application dated 21st November 2022, the 1st respondent applied to have the Court review the orders of 23rd September 2022, which as discernible from the above, found her guilty of contempt and ordered her to serve four (4) months in jail. The application was dismissed in a ruling delivered on 20th September 2024. In that ruling, the court made the following comments: “ 8. 5. 6. We reiterate that, at the heart of this dispute was the consent entered into by the parties on 10th March 2020, and which the applicant deliberately failed to obey and comply with. The failure necessitated the contempt proceedings that resulted into her being ordered to serve four (4) months in jail. She has since, again in disobedience, refused to surrender to the Chief Magistrate’s Court in Meru for her committal documents to be processed. Public condence in the administration of justice would better be served by the applicant going to serve the term that was pronounced by this Court.” Now, the applicant has led an application dated 21st October 2025 seeking the following orders: 1. That the 1st respondent be cited for continued contempt of this court’s orders of 23rd September 2022 and 20th September 2024 as she has failed to surrender to the Chief Magistrates’ Court Meru for her committal documents to be processed. 2. That should this court cite her for such contempt she be committed to civil jail for a further period of 6 months or any other such suitable punishment that this court may impose. The application is opposed by the 1st respondent, who has sworn a lengthy replying adavit running to 47 paragraphs. In a nutshell, she contends inter alia that the applicant has no locus standi to le the application as his notice of appeal to this court is incompetent; that the application is not paginated as required by Rule 13(4) of the rules of this Court; that the application is defective as it purports to invoke the provisions of Section 1A, 1B, of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules, which do not apply to this Court; that she was let down by her previous advocate who did not properly advise her on the consent and subsequent application for contempt; that she tried to purge the contempt by executing the transfer forms; and that she is a single mother. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1746/eng@2026-09-25 2

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7. To urge the application, Mr. Murangiri, learned counsel for the applicant, led written submissions and also made oral highlights. Mr. Kinyanjui, learned counsel for the 1st respondent, made oral submissions. We have taken into account these submissions. 8. The 1st respondent, the subject of the application, has of course urged that the notice of appeal is incompetent, but we regret that this is not the forum to address that. On the issue that the application is not paginated as directed in Rule 13 (4) of the Rules of this Court, that is nothing more than a procedural technicality, and we see no prejudice to the 1st respondent. The 1st respondent is however correct that the application invokes the wrong procedure, in that it is purportedly brought under Sections 1A, 1B, 3A and 98 of the Civil Procedure Act, Cap 21, Laws of Kenya, and Order 51 Rule 1 of the Civil Procedure Rules, as this Court is guided by the Appellate Jurisdiction Act, Cap 9, Laws of Kenya, and the Rules thereunder. We however note that the applicant has also invoked the Judicature Act, Cap 8, Laws of Kenya, and Section 5 of the Judicature Act provides as follows: “ The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England.” 9. This Court therefore has power to consider an application for disobedience of its orders pursuant to the above. 10. The substantive issue is whether this court ought to nd the 1st respondent in further contempt as contended by the applicant. 11. We have carefully considered the ruling of 23rd September 20122 and the ruling of 20th September 2024. In the ruling of 23rd September 2022, this court indeed found the 1st respondent to be in contempt. We have already spelt out what the court stated in paragraph 3 above. 12. It will be recalled that the 1st respondent sought review of the order above which application was dismissed in the ruling of 20th September 2024. In that ruling, the Court inter alia expressed that: “ …She has since, again in disobedience, refused to surrender to the Chief Magistrate’s Court in Meru for her committal documents to be processed. Public condence in the administration of justice would better be served by the applicant going to serve the term that was pronounced by this Court.” 13. It is this statement by the court that the applicant hinges on to support his assertion that the 1st respondent is in continuous contempt. 14. There is no question that a person is liable to be held in contempt if they fail to obey an order of the Court. The 1st respondent was indeed found to be in contempt when she failed to transfer the title as ordered by the Court, and for that disobedience she was committed to four months in civil jail. We have carefully looked at the order that committed her to civil jail which states:“the Ocer Commanding Chogoria Police Station or any other police station within the precincts of the 1st respondent’s residence” were ordered “to arrest and escort the 1st respondent, Dinah Kawira Nkabo, to Meru Chief Magistrates’ Court for issuance of the committal documents.” We see no order directed at the 1st respondent to deliver herself to the Meru Magistrates’ Court. Our interpretation of the subsequent ruling of 20th September 2024 is that it was nothing more than the Court expressing its frustration at the fact that the 1st respondent is yet to serve her term of 4 months, for the Court could not make a conclusive nding that she had disobeyed an order that the Court did not specically make. Whatever the case, what is critical is that there was no specic direction to the respondent to present https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1746/eng@2026-09-25 3

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herself to court in the ruling of 23 September 2022 and what the court ordered was for the enforcement agency to arrest and present the 1st respondent to the Chief Magistrates’ Court for committal. For avoidance of doubt, it should not be interpreted that we are making a pronouncement that she should not surrender herself to the Court for committal, but she cannot be held to be in contempt for not taking herself to court because there was no express order directing her to act as such. Those orders are still in force and should be acted upon if the 1st respondent does not so present herself to Court. 15. For the reasons above, we are not persuaded that the application should be allowed and the same is hereby dismissed. 16. We make no orders as to costs as the 1st respondent does not deserve any, given her conduct and the fact that she is still at large. 17. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU (P) (FCIArb, C.Arb) ………………………… JUDGE OF APPEAL H. I. ONG’UDI ………………………… MUNYAO SILA ………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1746/eng@2026-09-25 4

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