Filly Akoth Onditi v William Otieno Orwa

5) THAT costs of this application be provided for. 2. The application is anchored on the grounds set out on its face and supported by the Affidavit of Filly Akoth Onditi, sworn on 1st July, 2026. 3. The Applicant depones that she is the registered owner of land parcel SIAYA/NYANGOMA/675, which forms the primary subject matter of this suit. 4. She states that on 8th April, 2026, this Court issued explicit orders restraining the Respondent, his servants, agents, and/or employees from interfering with the suit property. 5. The Applicant asserts that the Respondent was fully aware of the said court orders, having been duly served directly and through his advocates on record. 6. Notwithstanding full knowledge of the court's directives, the Applicant avers that the Respondent has willfully and deliberately continued to enter the suit property. She specifically highlights that the Respondent has persisted in conducting unlawful mining and excavation activities on the parcel of land. 7. That as a result of the defendant's continued actions, the suit property has been interfered with, damaged and degraded thereby exposing me to irreparable loss and destruction of the subject matter of this suit. 2

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8. The Applicant characterizes the Respondent’s conduct as a blatant, willful disobedience of lawful court orders amounting to clear contempt of court. 9. That unless this Honourable Court intervenes urgently, the Defendant is likely to continue disobeying the court orders and further interfere with the suit property thereby defeating the course of justice. 10. Regarding the Court's jurisdiction and enforcement powers, the Applicant depones on legal advice from her Advocates on record, that this Honourable Court possesses the requisite jurisdiction to enforce compliance with its orders and preserve its dignity through contempt proceedings and ancillary enforcement orders, including police assistance. 11. In further support of the application, the Applicant annexed to her affidavit a copy of the court order issued on 8th April, 2026 marked "FAO-1", photographs showing ongoing interference, mining and/or excavation activities on the suit property marked "FAO-2" and correspondence or notification to the defendant and/or his advocate marked "FAO-3". 12. The Applicant states that the said photographs in "FAO-2" accurately depict the current state of the suit property and the continuing acts of interference by the defendant. 13. Service of the Notice of Motion dated 1st July 2026 was affected upon the Respondent’s 3 advocates, Messrs.

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K’Owino & Company Advocates, on 22 nd July 2026. The Court directed that the Respondent be granted fourteen (14) days from the date of personal service to file a response. 14. The Respondent has not filed any response to the Applicant’s Notice of Motion application dated 1 st July 2026. SUBMISSIONS 15. The application was to be dispensed by way of written submissions none of the parties complied. The Court will proceed to determine the Notice of Motion on its merits based on the pleadings and materials available on record. ANALYSIS AND DETERMINATION 16. I have read the affidavit sworn in support of the application. The main issue for determination is whether the Respondent is in contempt of the court orders issued on 8th April, 2026 and whether the orders sought should issue. 17. The Black’s Law Dictionary 9th Edition, defines contempt as: “The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct administration of justice.” 4 interferes with the

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18. Section 5(1) of the Judicature Act grants the High Court and the Court of Appeal the power to punish for contempt. It provides: “(1) 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 upholding and that the power shall extend to authority and dignity of subordinate courts.” 19 The provisions of Section 29 of the Environment and Land Court Act states that; “Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 20. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, Mativo J stated: “It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to 5

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comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. 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 order; c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate.” 21. In Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR the court not only set out the requisite test for establishing contempt but 6

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also elaborated on its underlying nature and purpose. The court observed as follows: “Contempt of court is not merely a mechanism for the enforcement of court orders. The jurisdiction of the superior courts to commit recalcitrant litigants for contempt of court when they fail or refuse to obey court orders has at its heart the very effectiveness and legitimacy of the judicial system. That, in turn, means that the court called upon to commit such a litigant for his or her contempt is not only dealing with the individual interest of the frustrated successful litigant but also, as importantly, acting as guardian of the public interest”. 22. The Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & Sayeed Mansour Mousavi [2018] KESC 51 (KLR) stated that contempt proceedings are quasi-criminal, they must be exercised with utmost care and only as a last resort and an applicant must establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she wilfully acted in a manner that flouted the court order. 23. The court will be guided accordingly. 7

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24. The order alleged to have been breached by the Respondent was issued on 8th April, 2026 directed as follows: i. That the application dated 3rd March 2026 be and is hereby allowed by consent of the parties in terms of prayer 2 pending the hearing of the main suit. ii. That pending hearing and determination of this application, the Respondent be restrained from further construction and interference with land parcel number SIAYA/NYANGOMA/675. iii. ………………………. iv. ……………………………….. v. …………………………………… vi. ……………………………………… 25. A review of the order issued leaves no doubt as to its clarity and force. The order explicitly restrains the Respondent from further construction and interference with land parcel SIAYA / NYANGOMA /675. The directive is expressed in clear, mandatory and unequivocal terms identifying the prohibited acts and the specific suit property. 26. The second requirement is for the Applicant to establish that the Respondent had knowledge of the court order. 27. Knowledge of an order speaks directly to whether the Respondent’s disobedience was deliberate or willful. While personal service of an order is the customary mode of 8

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demonstrating notice, actual knowledge is imputed where the persons appointed legal representative was present in court when the order was issued. 28. The record reflects that on 8th April 2026, when the subject orders were issued, the Respondent was duly represented in court by his counsel, Mr. K’Owino. Notably, the order of 8th April 2026 was explicitly entered by consent of both parties, with Mr. K’owino actively participating in agreeing to Prayer No. 2 of the application dated 3 rd March, 2026. 29. Having been participated represented in court, the by counsel who actively Respondent cannot claim ignorance of the terms of the order. This position is consistent with the holding in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, where the Court stated “Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings" We hold the view that it does. This is more so in a case such as this one where the advocate was in Court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable to the effect that when an advocate appears in court on instructions 9 of a party, then it

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behoves him/her to report back to the client all that transpired in court that has a bearing on the client’s case.” 30. I am therefore satisfied that the Respondent had full of the court order issued on 8th April 2026. knowledge 31. In establishing that the Respondent acted in breach of the terms of the order, the Applicant relied on her supporting affidavit sworn on 1st July 2026, to which she exhibited annexures marked "FAO 2". These annexures consist of photographic evidence depicting ongoing interference, mining and excavation activities being carried out on the suit property. 32. The Respondent, despite having notice of these proceedings, did not file any replying affidavit or adduce evidence to refute or explain the activities captured in exhibit "FAO 2". In the absence of any contrary evidence or plausible explanation from the Respondent, the photographic evidence adduced by the Applicant stands uncontradicted. 33. This court finds that the Respondents continued entry, excavation and mining on the suit property were conscious, intentional and deliberate acts of defiance. 34. With regards to Prayer No. 2 of the application, which seeks an order directing the Officer Commanding Station 10

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(OCS) to enforce compliance it is my view that court orders must be obeyed and I will not bog down the OCS. 35. In the premise, the Applicant’s Notice of Motion dated 1 st July, 2026 is disposed in the following terms;1. That Prayer No. 2 of the Notice of Motion dated 1 st July 2026 is hereby declined. 2. That Court finds Respondent is in contempt of the Court Order issued on 8th April 2026. 3. That the Respondent shall appear before this Court in person on 30th September, 2026 for mitigation and sentencing/punishment for contempt. 4. That terms of the Consent dated 8/4/2026 which were adopted as orders of the court are hereby reiterated. 5. The costs of this application are awarded to the Applicant. It is so ordered Dated at Siaya this 22nd Day of September 2026 HON. JUSTICE A. E. DENA JUDGE 22/09/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Odhiambo Holding Brief for Mr. Obiero for the Applicant 11

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No appearance for the Respondents Court assistant: Victor Bwire 12

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