Ahmed v Tanui

3. 4. i. There is a judgment and decree of this court which the Applicant is in the process of enforcement; ii. The Applicant has come to learn that the Respondent who deliberately refused to comply with the said court orders, is not only frustrating realization of the same but also is in the process of creating 3rd party interests in the suit property, which when the Applicant heard at the rst time she ignored. iii. That the Respondent has restrained the Applicant and her agents as well as state ocers, by not only exhibiting unspeakable violence in the company of unknown persons, but has ensured that the Claimant does not nalize the court Order compliance process. iv. That unless the court intervenes and issues the Orders herein prayed, the Respondent may create new third party interests in the suit property, which shall automatically invite more legal battles. Further the Applicant led an adavit in support of the Application sworn on 3rd March 2026 and she averred as follows: i. That pursuant to the judgment of this Court herein she prepared and served the Defendant/ Respondent with the eviction notice pursuant to Section 152 of the Land Act and in accordance with the terms of the judgment. Further that she served all the respective stake holders including the Land Registrar, the police, the local administration and the Land Surveyor with the court order/decree. ii. That upon receipt of the said court order/decree, the police informed her that the eviction process had to be approved by the regional, county, and sub-county security committees and conrmed that the process was at the tail end. iii. That around the same time, when she took the Registrar and County Surveyor’s ocers the suit parcel to initiate the transfer of the Nandi/Kamobo/6696 to the Respondent as ordered, the Respondent became violent and threatened to kill any person who shall come to the suit parcel to do anything in respect to the court order, claiming he has an order barring her from dealing with the land. That for that reason, the Land Registrar advised her to wait and that they would do the demarcation during the eviction process, which was awaiting police security committees sanctioning. iv. That on 2nd March, 2026 she received a letter from another advocate, expressing itself that the said advocate is conducting due diligence in favour of their client, who seeks to purchase the said property. That unless the court intervenes and issues the Orders sought, the Respondent may create new third-party interests in the suit property by selling and/or entering other contracts capable to create adverse interests to complicate the matter seriously, which shall automatically invite more legal battles. The Respondent through Buluma and Company Advocates before replacement by Kipruto and Mabalu Advocates pursuant to a notice of change of advocates dated 1st July 2026 opposed the application through his replying adavit sworn on the 8th June 2026 and a further adavit sworn on the 8th July 2026. He averred as follows: i. That the application has been brought pre maturely before this court since it appears at paragraph 9 of the applicants supporting adavit that the security committees are yet to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5900/eng@2026-09-22 2

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commence implementation of the decree hence it is not true or possible by any gment of imagination that he has restrained the applicant from executing the decree. ii. That the matter is currently pending determination before the Court of Appeal at Eldoret, being Court of Appeal Civil Application No. E041 of 2025, arising from this matter, which is awaiting directions and that in view of the said pending appeal, any allegation of contempt is premature, unfounded, and intended to mislead this Honourable Court into exercising jurisdiction it does not presently possess over the substantive dispute. iii. That it is common practice for the Land Registrar and the County Surveyor to visit parcels of land accompanied by local Administration and police security, it is unlikely as alleged at paragraph 10 of the applicant's Supporting Adavit for the two ocers to visit the scene for ocial duty unaccompanied by local administration and police security, hence it is therefore not true that the said ocers actually visited NANDI/KAMOBO/6696 as alleged by the applicant. iv. That he had been advised that threats to kill and all threats of violent nature are criminal and attract penal consequences, and despite that, the applicant has not reported these threats to the Local Administration or the police so that action may be taken against him if the same is true. v. That he is not the registered owner of NANDI/KAMOBO/6695 & NANDI/ KAMOBO/6696, neither is he in possession of any documents which can pass good title to any third party hence it is not only untrue that he intends to sell the said land parcels but it is also impossible for him to pass good title to any third party who may be interested in the same. 5. By a further adavit sworn on 8th July 2026, the applicant made reference to paragraph 9 of the replying adavit that there is no impediment to implementation of the decree in this case. That he is not the registered owner of the suit land to prompt him pass good title in respect of the land. 6. Learned counsel for the applicant led her submissions on 20th July 2026 and contend as follows: i. That it cannot be disputed that the Respondent disobeyed the Order to vacate the suit property, and he has also prevented the subdivision of the land, to have his parcel transferred to him, and he is hiding behind the Application to extend time to le his appeal, as the reason to stop the subdivision; ii. That the Respondents Actions have forced the Applicant to seek courts orders for security to the Land Registrar and Surveyor, to ensure compliance with the court’s order at the instance of the Respondents threats and determination to prevent realization of the judgment. iii. Reliance was made on the case of Dorothy Wanjiku Waweru v Sam Kanyingi Macharia [2018] KEELC 662 (KLR), in which the court held that court orders are not mere suggestions to parties but that they are compulsive and not for any party; be he high or low, weak or mighty and quite regardless of his status or standing in society, to decide whether or not to obey; to choose which to obey and which to ignore or to negotiate the manner of his compliance. 7. As at the time of writing this ruling, the Respondent’s submissions not duly led as per the court case tracking system. 8. This Honourable Court has considered the application, the adavits and submissions inclusive of the case law cited therein. The court has been invited to answer a triple questions namely whether; a. The application is properly before this court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5900/eng@2026-09-22 3

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b. Subject to question (a) hereinabove, the Respondent should be restrained from dealing or disposing land parcel number Nandi Kamobo/6695 and/or Nandi/Kamobo/6696 and c. That the said Respondent should be cited for contempt of court and orders to issue as prayed in the application. 9. On the rst question, as disclosed in paragraph 4 hereinabove, there is an appeal namely Court of Appeal Civil Application No. E041 of 2025 arising from the instant case. The same is pending before the Court of Appeal at Eldoret. 10. It is established law that when a substantive appeal arising from the matter in dispute is fully active before a senior appellate court; duplicate motions in lower or parallel benches are completely devoid of jurisdiction over the matter; see John Mutua Ngunjiri & 2 others vs Silas Richard Mukolwe & another {2019} KESC 25 (KLR). 11. Halsbury’s Laws of England 4th Edition Volume 9 at page 350, denes ‘Jurisdiction’ as follows; ‘…..the authority of the Court which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision…….’ (see also John Beecroft Saunders in his treatise Words and Phrases legally dened Volume 3 at page 113) 12. It is settled law that jurisdiction denotes whether the adjudicatory body has the power to entertain the proceedings; see Benson Ambuti Adega & 2 others vs Kibos Distillers Ltd & 5 others (2020) eKLR. 13. Further, in the case of Samuel Kamau Macharia and another vs Kenya Commercial Bank & 2 others [2012] KESC 8 (KLR) at page 68 that a court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. 14. Furthermore, in the case of Republic-vs-Karisa Chengo & 2 others {2017} KESC 15 (KLR), the Supreme Court of the Republic of Kenya remarked thus; ‘…..Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable. When an act is void, it is a nullity ab initio. It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of Benjamin Leonard Macfoy United Africa Company Limited (UK) {1962} AC 152 succinctly makes this point…..’ 15. In view of the pending appeal at the Court of Appeal arising from the instant case, this court lacks jurisdiction over the instant application. It is crystal clear that, jurisdiction has shifted upward to the Court of Appeal hence, this court is functus ocio over the present matter and can no longer attend to this parallel inept application. 16. In view of the foregone, this court is conscious of the locus classicus case on the issuance of injunctions is Giella –vs- Cassman Brown & Co. Limited (1973) EA 358 in which the Court established a threetier qualication for the grant of an injunction namely a prima facie case with a probability of success on trial, irreparable damage incapable of being compensated by damages and that the balance of convenience tilts in the favour of the applicant. 17. Also, this Court is not unaware of quasi criminal nature of contempt of Court and the standard of proof in such cases; see also Sum v Koech [2024] KEHC 14276 (KLR). 18. Besides, this Court having found that the this court is devoid of jurisdiction over the present application, there is no need to make one more step herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5900/eng@2026-09-22 4

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19. Wherefore, the application dated 3rd March 2026 must fail. The same is hereby struck out with no orders as to costs. DATED AND DELIVERED AT KAPSABET THIS 22ND DAY OF SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Mr. Kongani learned counsel for the applicant 2. Mr. Walter Kipkorir, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5900/eng@2026-09-22 5

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