Postal Corporation of Kenya & another v County Government of Kiambu; Wamatangi & another (Contemnor) (Civil Suit 785 of 2017) [2025] KEELC 6744 (KLR)

iii. That pending the hearing and determination of this Application, the Honorable Court be pleased to issue an order directing the Respondent to produce to this Honorable Court and to the Plaintifis statement of account for the period between the year 2018 to date pertaining to the proceeds the Defendant/Respondent has acquired from the impugned bus stage all other developments that has since been erected on all the property known as Kiambu/Mun.Block 2/284. iv. That an order of permanent injunction do issue against the Respondents, their oficers, assigns, servant or any other person acting under instruction prohibiting invasion, development, interference or any other form of occupation of all that property known as Kiambu/Mun. Block 2/284. v. That the Honorable Court be pleased to issue an order directing the Respondent to remove the bus stage and any other development erected by themselves or their servants or persons acting under their instructions from all that property known as Kiambu/Mun.Block 2/284 with immediate efiect. vi. That the Honorable Court be pleased to issue an order directing the Defendant/Respondent to pay the 1st Plaintifi/Applicant all monies arising from the operation of the bus stage and any other development erected by the Respondent or their servants/oficers on all that property known as Kiambu/Mun.Block 1/284 from the year January, 2018 to date. vii. The Honorable Court be pleased to make an order of committal to civil jail for a term not exceeding six months or impose a fine or both to the 1st contemnor, Honorable Kimani Wamatangi the Governor, Kiambu County and the 2nd Contemnor, Peter Ndegwa, the County Secretary, Kiambu County as the persons in charge of the Defendant/Respondent for the disobedience by the Defendant/Respondent of the Court Ruling and Orders made by Honorable Lady Justice L. Gacheru on 13th July, 2018. viii. That the 1st contemnor, Honorable Kimani Wamatangi the Governor, Kiambu County and the 2nd Contemnor, Peter Ndegwa, the County Secretary, Kiambu County be cited for contempt of Court and committed to civil jail for a term of six (6) months and/or be ordered to purge the contempt of Court; ix. That in the alternative to prayer (v) above, the Honorable Court be pleased to issue an order that all monies/fees/charges accruing or arising from the operation of the bus stage situated on all that property known as Kiambu/Mun. Block 2/284 be paid directly to the 1st Plaintifi/ Applicant; and x. That costs of this application be borne by the Defendant/Respondent. 2. The application is based on the grounds on the face of the Motion and supported by the Afidavit of Jane Masara, the 1st Plaintifi’s Company Secretary duly authorized to swear the Afidavit on behalf of the 1st Plaintifi/Applicant. 3. This matter was commenced by way of a Plaint dated 3/10/2017 (Formerly HCCC No. 21 of 2017) in the Plaint the 1st Plaintifi sought the following orders; 1. A declaration that the Plaintifi is the legal owner of all that property known as Kiambu/ Mun.Block 2/284 situate in Kiambu. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 2

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2. An order of Permanent Injunction restraining the Defendant/Respondent through its agents, employees or otherwise howsoever, from interfering with the Plaintifi/Applicant’s quiet possession of all that property known as Kiambu/Mun.Block 2/284 situate in Kiambu. 3. Special damages 4. General damages for trespass. 5. The Costs of this Suit. 4. Together with the Plaint, the Plaintifi filed a Notice of Motion dated 5/10/2017 in which he sought for an injunction pending hearing and determination of the suit, the Defendant be restrained either through its agents, employees or otherwise howsoever from cutting down trees, demolishing structures and/or in any way whatsoever interfering with the property known as Kiambu/Mun.Block 2/284. 5. The Court record shows that the Court allowed the Plaintifi’s application and stated thus: “ Therefore, the Court finds that that status quo should be maintained herein and that the status quo is the one that existed before the bus stage was allowed to operate on the suit property. Having now carefully considered the instant Notice of Motion dated 5th October 2017, the Court finds it merited and it is allowed entirely in terms of prayers Nos. 3, 4 and 5 with costs to the Applicants herein. Further the Defendant is directed to remove the alleged bus stage on the 1st Plaintifi’s/Applicant’s suit property and to resist from charging the Matatu operators who are using the suit property as a bus stage or terminus until the suit is heard and determined.” 6. The Plaintifi then filed an application dated 7/03/2025 seeking the 1st and 2nd Contemnors committal to civil jail for a period not exceeding six (6) months for contempt of Court orders issued on 13/07/2018. It is this application that is the subject matter of the Ruling herein. 7. The Plaintifi claims that despite the Defendant’s full knowledge of the aforementioned Ruling of 13/07/2018 and the Court order of 20/07/2018 the Defendant has continued to demolish structures and cut down trees. That the attempt to appeal the decision seeking stay of execution of Judgment was dismissed and the Defendant/Respondent continues to act in contravention of the Court Order. 8. The 1st Plaintifi avers that it is in the interest of justice that the prayers sought are granted against the Defendant/Respondent who continues to disrupt quiet possession of the Plaintifi/Applicant. Further that he should be directed to produce the Statements of Account for the period between 2018 to date pertaining to the proceeds the Defendant/Respondent has acquired from the impugned bus stage that was erected on the suit property to enable the 1st Plaintifi/Applicant ascertain how much money the Defendant makes by disobeying the Court order to their detriment. 9. The Plaintifi filed written submissions dated 28/04/2025. 10. The Defendant filed a Replying Afidavit sworn on 24/03/2025 by the County Attorney, Waithira Waiyaki in which she admitted that orders were issued by this Honorable Court on 13/07/2018 but she stated that the parties commenced negotiations immediately thereafter with the former Governor, Ferdinand Babayao Waititu. 11. That however in 2020 the Applicant instructed the County Government of Kiambu to conduct a valuation on the suit property for purposes of compensation dated 22/08/2019 and she produced a copy of the valuation as annexure ‘WW1’. Further that at a meeting on 10/3/2025 the Postmaster https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 3

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General Mr John Kipyegon Tanui and the Postal Corporation of Kenya Chairperson Dr. Rose Nyamunga held a meeting at which the deponent attended and the parties agreed on a way forward. 12. That thereafter a beaconing exercise was undertaken by the parties through their respective valuers and it awaits confirmation by the Government Valuer and that there is an ofier letter to the 1st Plaintifi for consideration and it is attached annexure ‘WW-2’. 13. It is the contention of the Defendant that the application is time-barred by virtue of Section 4 of the Limitation of Actions Act since the Applicant ought to have moved the Court when the action started accruing in 2018. Further that compelling the Defendant/Respondent to produce Statements of Account for the period between 2018 to date was never pleaded in the main suit and that it cannot be sought for in the instant application. 14. Further that in line with Article 189 (3) of the Constitution and Section 32 of the Intergovernmental Relations Act (2012) and also in line with the meeting held on 10/03/2025 the two levels of government should be allowed to resolve the dispute as guided by the law. 15. By the time I was writing the Ruling the Defendant had not filed any written submissions. I have therefore singularly considered the submissions filed by the 1st Plaintifi/Applicant. Analysis and Determination 16. Having perused the application, the following issues arise for determination; a. Whether the 1st and 2nd Contemnors should be cited for contempt of Court orders. b. Whether the Applicant’s application dated 7/03/2025 is merited. c. Who bears the costs of the application? 17. May be I should start by asking whether the 1st Plaintifi has shown that the 1st and 2nd Contemnors have acted in contempt of the orders of the Court issued on 13/07/2018? 18. To begin with the said orders stated as follows: “ Therefore, the Court finds that that status quo should be maintained herein and that the status quo is the one that existed before the bus stage was allowed to operate on the suit property. Having now carefully considered the instant Notice of Motion dated 5th October 2017, the Court finds it merited and it is allowed entirely in terms of prayers Nos. 3, 4 and 5 with costs to the Applicants herein. Further the Defendant is directed to remove the alleged bus stage on the 1st Plaintifi’s/Applicant’s suit property and to resist from charging the Matatu operators who are using the suit property as a bus stage o terminus until the suit is heard and determined.” 19. The law applicable to contempt of Court in the present circumstances is Order 40 Rule 3 of the Civil Procedure Rules which deal with consequence of breach and provides as follows; “ In cases of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the Court directs his release.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 4

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20. Order 22 Rule 28 of Civil Procedure Rules provides that; “ Where any party against whom a decree for the specific performance of a contract, for an injunction, has been passed, has had an opportunity of obeying the decree, and has willfully failed to obey it; the decree may be enforced by his detention in prison, or by the attachment of his property, or by both.” 21. The essential elements of civil contempt in the case Katsuri Ltd. –vs- KapurchandDepar Shah (2016) eKLR. Mativo J. stated “ Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:"There are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: - 22. a. the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant; b. the Defendant had knowledge of or proper notice of the terms of the order; c. the Defendant has acted in breach of the terms of the order; and d. the Defendant's conduct was deliberate.” In relation to the present case, it is important to see if the above test on proving the elements of civil contempt have been met in that; a. 23. Are the terms of the order clear and unambiguous and binding on the Defendant? The Court gave the orders complained of on 13/07/2018 and the same were issued on 20/03/2025. If the said orders as set out above are given a literal meaning, the same are clearly directed to the Defendant, the Plaintifi is not required by the orders to do anything or to refrain from doing anything. The orders do however direct the Defendant to refrain from entering the premises. I find that the orders are clear and not ambiguous. b. Did the Defendant have knowledge of the order? 24. From the averments made in the Supporting Afidavit, the Plaintifi has not adduced evidence that proves that the Defendant had been served with the Court Order. However, considering that there was an Appeal against the said Ruling in the Court of Appeal which was dismissed, then the Defendant was indeed aware of the orders. I will therefore move to find that the Defendant had knowledge of or proper notice of the terms of the orders. c. Has the Defendant acted in breach of the orders? 25. As I have found at paragraph (a) and 22 above the order of the Court was directed at the Defendant who was directed to remove the alleged bus stage on the 1st Plaintifi’s/Applicant’s suit property and to resist from charging the Matatu Operators who are using the suit property as a bus stage or terminal until this suit is heard and determined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 5

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26. The County Attorney has admitted of the Court Order issued on 13/07/2018 but taken cover in stating that the Governor who was in ofice then was impeached and that the 1st Plaintifi instructed the County Government to undertake a valuation. She has not presented any letter from the 1st Plaintifi issuing the said directions. She instead chose to attach a valuation report which she avers emanates from instructions from the 1st Plaintifi. 27. At the same time, she avers that there was a meeting in March 2025 again no minutes have been attached to prove this averment. She then moves to state that the application is time barred by virtue of Section 4 of the Limitation of Actions Act. Stating the Applicant ought to have moved the Honorable Court when action started accruing in 2018. 28. Now, an injunctive action, specifically seeking to restrain trespass or encroachment on land based on ownership, is not directly barred by Section 4 of the Limitation of Actions Act. However, the ability to pursue such an action may be afiected by the limitation period for recovering the land itself. 29. Section 4 of the Limitation of Actions Act, read with Section 7, prescribes a 12-year limitation period for actions to recover land. This means a claim to ownership of land (including an action for recovery) must be initiated within 12 years of the right of action accruing. If the 12-year period has passed, the right to recover the land is extinguished, and an injunction to prevent trespass, which is essentially an indirect way of recovering land, may also be barred. 30. In the instant case the action is about ownership and the suit was instituted in 2017 and therefore the action for injunction is anchored within the time-frame of 12 years. 31. It is trite that a Court order must be obeyed whether a party agrees with its contents or not, and as long as the order still subsists, then it remains a valid Court Order that must be adhered to. The adherence to the Court order is not optional even if a party has applied for review, variation or appeal of the said order. In the case of Kenya Tea Growers Association vs Francis Atwoli and 5 Others (2012)eKLR, Lenaola J cited with approval the case of Clarke and Others vs Chadburn & Others [1985] 1All E.R (PC), 211 in which the Court observed that: “ I need not cite authority for the proposition that it is of high importance that orders of the Courts should be obeyed, willful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal…even if the Defendants thought that the injunction was improperly obtained or too wide in its terms, that provides no excuse for disobeying it. The remedy is to vary or discharge it.” 32. This Court has already found that the Defendants had knowledge of the orders of this Court. There is no doubt that the orders have been in force since they were issued and have neither been discharged, varied or set aside. The Court granted the injunction on a temporary basis pending the hearing and determination of the suit herein. The question now is whether the Defendants have contravened the order of Court restraining them from any dealings on the suit property as well as whether this contravention was deliberate. 33. Among the prayers sought in the instant Application is committal to civil jail, which will result in denying the Defendants their liberty. It is for this reason that the standard of proof in contempt matters https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 6

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is higher than that of ordinary civil matters. In the case of Mutitika vs Baharini Farm Limited [1985] KLR 229, 234 the Court of Appeal held that: “ In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an ofience which can be said to be quasi-criminal in nature. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be afiected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the Respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that fiouted the Court Order.” 34. This then means that the violation that the Defendants are accused of must be proved to a standard which though not as high as proof beyond reasonable doubt, must is higher than proof on a balance of probabilities. The threshold is quite high as it involves possible deprivation of a person’s liberty. It is important therefore that the Court satisfies itself that first, the acts complained of actually happened, secondly, that the person alleged to be in contempt committed the acts complained of and lastly, he did so with full knowledge of the existence of the order of the Court forbidding it. It needs no mention that the burden of proving that the Defendants did disobey the Court order lays squarely on Plaintifi. 35. The Black’s Law Dictionary 9th Edition defines contempt of Court as follows:“ Conduct that defies the authority or dignity of the Court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment,” 36. In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another [2005] eKLR Ibrahim J (as he then was) stated as follows:“ It is essential for the maintenance of the Rule of Law and order that the authority and dignity of our Courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect to whom an order is made by the Court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person afiected by an order believes it to be irregular or void.” 37. The law guiding the present application is Order 40 Rule 3(1) of the Civil Procedure Rules which provides as follows:“ In cases of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the Court directs his release.” 38. Section 5 of the Judicature Act confers jurisdiction on the Superior Courts to punish for contempt and provides that; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 7

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39. 40. i. 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, and such power shall extend to upholding the authority and dignity of subordinate Courts. ii. An order of the High Court made by way of punishment for contempt of Court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court. The High Court of South Africa in the case of Carla Burchell v Barry Grant Burchell Eastern Cape Division Case No 364 of 2005 held that in order to succeed in civil contempt proceedings, an Applicant has to prove:i. The terms of the order; ii. Knowledge of these terms by the Respondent; iii. Failure by the Respondents to comply with the terms of the order. And at home, in the case of Samuel M.N. Mweru & Others v National Land Commission & 2 Others (2020) eKLR the Court set out the elements to be proved in an application for contempt of Court as follows:“ Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated “there are essentially four elements that must be proved to make the case for civil contempt. The Applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:a. The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant; b. The Defendant had knowledge of or proper notice of the terms of the knowledge. c. The Defendant has acted in breach of the terms of the order; and d. The Defendant’s conduct was deliberate.” 41. I have already stated that the terms of the order were clear. It is not in dispute that there was an order issued on 13/07/2018, the Court issued an injunction against the Defendants pending the hearing and determination of this suit. At the same time, I already stated that the order was unambiguous. 42. On the issue of service, the Plaintifi has not attached any Afidavit of service showing the two contemnors were served I am therefore not satisfied that they were aware of the terms of the order although there was no ambiguity as observed. 43. On whether the Defendant/Contemnors deliberately breached the Court order, the Applicants have a duty to prove their case beyond the balance of probabilities. This is because contempt of Court is in the nature of criminal proceedings and the liberty of the subject is usually at stake. The Applicants must prove wilful and deliberate disobedience of the Court order if they are to succeed as was held in the case of Gatharia K. Mutitkika v Baharini farm ltd (1985) KLR where the Court held that:“ A contempt of Court is an ofience of a criminal nature. A man may be sent to prison. It must be proved satisfactorily ... It must be higher than prove on a balance of probabilities, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 8

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almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to ofiences which can be said to be quasi-criminal nature.” 44. In the case of Peter K Yego & Others v Pauline Wekesa Kode ACC NO. 194 OF 2014 the Court held that:“ It must be proved that one had actually disobeyed the Court order before being cited for contempt.” 45. In the present case, the Applicant asserted that the Defendant continued to use the Plaintifi’s property as a bus-stage of matatus and collected money from the matatus. The Applicants also produced photographs marked as Exhibit “JMM7” showing construction going on. The Applicants maintained that the Defendant continued to trespass into the suit property while the order was still in force. 46. In the Application herein, no specific date(s) has been given as the date(s) when the Defendants deliberately carried out the acts of disobedience of the Court order but it is clear that a status quo order was issued on 13/07/2018 and the same has not been set aside. 47. I note however, that the photographs annexed to the Plaintifi’s Supporting Afidavit bear no date stamp, therefore it cannot be said with certainty that the digging of trenches seen in the photographs relates to the suit property. The photographs appear to be of difierent sections of the land and cannot provide a proper comparison of the status of the land prior to issuance of the order and the current status after the order was made. I am unable to state with certainty that these are new structures that did not exist before the suit. I have not seen any pictures of trees cut as alleged and buildings destroyed. I have however seen construction going on in the photographs and I have also seen a matatu and other vehicles adjacent to the alleged suit property. 48. There is an alleged repeat disobedience raised in the Plaintifi’s Afidavit, where the Plaintifi claims the Defendant is using the Plaintifi’s property as a matatu bus stage. Although the Court can see a matatu in the far distance of the construction work, the Court is not able to triangulate the information to answer to the claim. The photographs are therefore inconclusive in that regard. 49. Nevertheless, if indeed it is the Defendant who has taken over the Plaintifi’s suit property and decided to dig trenches and construct on it, then that conduct was deliberate, in the sense that they willfully acted in a manner that fiouted the said Order. No doubt, if the Plaintifi had tendered suficient evidence of the Defendants’ disobedience, this Court would have made a finding to that efiect. 50. However, the evidence presented in this instant Motion falls short of the required standard. The Defendant is reminded that the status quo orders issued are still in place, so for the avoidance of doubt, should the Defendant disregard them by taking over the Plaintifi’s land, construct and use it as a matatu bus stage or in any other way acting contrary to the said orders, those will be separate acts of trespass and disobedience. Parties should thus bear in mind that this application or the outcome herein will not act as a bar to subsequent prosecution for any future acts of trespass/disobedience. 51. However, for purposes of the Application herein, the Plaintifi has failed to prove that the acts of contempt took place on the suit property after the issuance of injunctive orders by this Court. That being so, the Plaintifi’s prayer to have the Court cite the 1st and 2nd contemnor to be cited for contempt has fallen short of establishing that the contemnors are guilty of disobeying the order of this Court dated 13/07/2018. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 9

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52. On the prayers for injunction, the principles upon which the Court may consider an application for injunction were laid out in the case of Giella v Cassman Brown (1973) EA 358. The Applicant must first demonstrate a prima facie case with a probability of success; secondly, the Court will not normally grant an injunction unless the Applicant stands to sufier irreparable loss which cannot be compensated by an award of damages; and finally where there is doubt the Court decides the matter on a balance of convenience. It should also always be remembered that the essence of an application for injunction is for the Court to make an order on how the subject matter of the suit ought best to be preserved pending the substantive hearing of the matter. 53. I have seen the decision made by my sister Justice Gacheru and noted that she even issued injunctive orders as follows: a. That the status quo should be maintained herein and the status quo is the one that existed before the bus stage was allowed to operate on the suit property; b. That pending the hearing and determination of this Suit filed herein, an Order of injunction do issue, restraining the Defendant/Respondent jointly and severally whether by themselves, their agents, employees or otherwise howsoever, from in any way whatsoever interfering with the Plaintifi/Applicant’s quiet possession of all that property known as Kiambu/ Mun.Block 2/284; c. That pending the inter-partes hearing and determination of this Application, an Order of injunction do issue, restraining the Defendant/Respondent through its agents, employees or otherwise howsoever, from cutting trees, demolishing structures and/ or in any way whatsoever interfering with that property known as Kiambu/ Mun.Block 2/284; and d. That the OCS Kiambu Police Station do enforce the Orders issued herein. 54. It is therefore a fact that the Applicant herein was issued with orders of injunction which are still in subsistence having not been set aside. 55. I see no need of reissuing the same orders reiterating that a Court of law never acts in vain and I direct that the orders issued must be respected. 56. At the same time, since this Court already issued status quo orders and injunctive orders issued vide this Court’s Ruling dated 13/07/2018 and has not been set aside and the Appeal against the same was dismissed. I see no point of issuing same prayers save that I will issue order vi and ix of the Notice of Motion Application dated 7/03/2025. In conclusion, I issue the following disposal orders: a. The prayer for contempt sought herein is unmerited for reasons given above. b. Prayer (vi) and prayer (ix) is merited and is hereby issued as prayed. c. I award the costs of this application to the Applicant/Plaintifi. Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 7TH DAY OF OCTOBER, 2025. ...................................... MOGENI J https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 10

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JUDGE In the presence of:Mr. Cheruiyot holding brief for Mr. Mbogo for the 1st and 2nd Plaintifis Mr. Ometo for the Defendant/Respondent Mr. Ometo for the 1st and 2nd Contemnors Melita – Court Assistant ...................................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6744/eng@2025-10-07 11

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