David Kipkorir Sigei v Richard Kipkoros Langat

Kapkatet Police Station to conduct an investigation as to the Contemnor reported behavior vide 08/04/01/2026 OB and NO. provide a report before this Honourable Court. c. That this Honourable Court be pleased to issue summons to attend court upon the Contemnor on such a day as this application shall come up for inter-parties hearing to DR A FT COP Y explain to Court why contempt proceeding should not issue. d. That the Contemnor herein to be committed contempt to of jail. For Court for disobeying the Orders of this Honourable Court issued on 31 st July, 2025 and that he be kept in prison for a term not exceeding six(6) months or for such terms as this Honourable Court may deem fit to order. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 2 of 40

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e. That the cost of this application be borne by the said Contemnor. 3. The application is based on the grounds on its face and the supporting affidavit of DAVID KIPKORIR SIGEI sworn on 21st January, 2026. Factual Background. 4. The Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 30th April, 2025 wherein it seeks the DR A FT COP Y following prayers: a. An order of permanent injunction restraining the Defendant either by himself, agents, servants, employees or any other party acting interfering with, trespassing destroying crops, plucking whatsoever tea onto, bushes thereon on the plaintiff’s portion of land and/or doing any other act which is Prejudicial to the Plaintiff’s interest in the Plaintiff’s piece of land measuring 3.8 ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 3 of 40

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acres out of land parcel KERICHO/KAPKATET/1106. b. An order of specific performance be issued against the Defendant to transfer a portion of land measuring 3.8 acres out of land parcel KERICHO/KAPKATET/1106 to the Defendant (Sic). c. Costs of the suit. d. Any other or further relief the court may deem fit and just to award. 5. As at the time of writing this ruling the Defendants/Respondents has not filed their Statement of DR A FT COP Y Defense. 6. Previously and more precisely on the 18 th July, 2025, the Plaintiff/Applicant filed a Notice of Motion application seeking the following orders; a. THAT this application urgent and service of be certified as the same be dispensed with in the first instance. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 4 of 40

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b. THAT a temporary injunction do issue restraining the Respondent, either himself, his servants, agents, assignees, representatives, nominees or any other person, from destroying trespassing the Applicant’s unto, property including tea bushes and Napier grass thereon, and/or in any other way interfering with the parcel of land known as LR. KERICHO/KAPKATET/1106, pending the hearing and determination of the application. c. THAT pending the hearing and DR A FT COP Y determination of the suit, a permanent injunction do issue restraining the Respondent, either himself, his servants, agents, assignees, nominees or trespassing any representatives, other unto, person, from destroying the Applicant’s property including tea bushes and Napier grass thereon, and/or in any other way interfering with the parcel of land known as LR. KERICHO/KAPKATET/1106. d. THAT an order do issue directing the Officer Commanding Station, OCS ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 5 of 40

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Kapkatet, to ensure that the Orders herein are complied with. e. THAT this Honourable Court be pleased to issue any other necessary directions for the ends of justice to be met. f. THAT the costs of the application be borne by the Respondent. 7. The application was compromised by the parties by way of a consent filed on 30th July, 2025. On 31st July, 2025, the said consent was adopted as an order of the court. The order is in the following terms: a. THAT the DR A FT COP Y disputed portion of land measuring 0.5 of an acre comprised under suit parcel LR NO. KERICHO/KAPKATET/1106 be left vacant, and neither the Plaintiff nor the Defendant will use it till determination of the suit. b. THAT there shall be no order as to costs of the application. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 6 of 40

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8. The application under consideration first came up for hearing on the 9th March, 2026 and the Court also issued directions that it be canvassed by way of written submissions. 9. I have noted that the Defendant filed a preliminary Objection dated 5th March, 2026 and filed on 9th March, 2026. It is on the ground that the Defendant has no legal capacity to be sued for reason that he is neither the registered owner of the suit parcel i.e. Kericho/Kapkatet/1106 or administrator therein his administrative duties having lapsed upon the suit DR A FT COP Y land being transferred to the beneficiaries. 10. No direction were taken on the hearing of this Preliminary objection. 11. On the 5th May 2026 the matter was mentioned to confirm filing of submissions after which it was reserved for ruling. The Plaintiff/Applicant’s Contention. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 7 of 40

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12. The affidavit in support of the application is sworn by DAVID KIPKORI SIGEI. 13. He contends that by an Order of this Honourable Court issued on 31st July, 2025, the Court directed that the status quo be maintained as between the parties herein pending the hearing and determination of the suit. The said order is annexed to the application. 14. He contends that the said Order was issued in the presence DR A FT COP Y of the Defendant and his counsel in open Court and that the Court, upon adoption of the parties' Consent dated 30 th July, 2025, clarified that the disputed portion of land measuring 0.5 of an acre comprised in suit parcel L.R. No. Kericho/Kapkatet/1106 be left vacant, and that neither he nor the Defendant would use the said portion pending determination of the suit. The consent signed by counsel for the parties is annexed. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 8 of 40

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15. It is his contention that, notwithstanding the clear terms of the said Consent and Order, the Defendant has continued to enter upon the land and has destroyed his property. 16. He further contends that, in direct contravention of the Court's Orders issued on 31st July, 2025 and further directions issued on 30th July, 2025, the Defendant, his agents, assigns and representatives entered onto his portion of the land on 4th January, 2026, and proceeded to destroy all his tea plantations, causing him extreme loss and pain. DR A FT COP Y The applicant has annexed 5 photographs intended to depict the destruction. 17. It is also his contention that there is an urgent need to preserve the suit property, as the Defendant means to illegally evict him from the suit property without a valid court order and without affording him an opportunity to be heard and yet he has been in occupation for over twenty (20) years. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 9 of 40

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18. It is his contention that, fearing for his life, he reported the matter at Kapkatet Police Station vide OB No. 08/04/01/2026. A copy of the O.B is annexed. 19. He contends that the Defendant’s conduct has occasioned him the loss of his main source of livelihood and immediate financial loss assessed at Kshs. 148,400 (Kenya Shillings One Hundred and Forty-Eight Thousand, Four Hundred only), as evidenced by a damage assessment carried out by the DR A FT COP Y Kapkatet Agricultural Officers. 20. It is further his contention that the Defendant’s conduct has raised public tension and unrest and adds that it is a taboo within the community for one to destroy farm produce, and that the Defendant’s behaviour has prejudiced and threatens to breach the peace as between him, his family, the local administration and the society at large. A copy of the report ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 10 of 40

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dated 16th July, 2025 by the Kapkatet Agricultural Officer is annexed. 21. He prays that this Honourable Court direct the OCS Kapkatet Police Station to carry out investigations, and to provide a report to Court, on whether the Defendant is responsible for the destruction of his tea plants. 22. It is his contention that he knows of his own knowledge that the Defendant’s breach of the valid Court Order has been DR A FT COP Y detrimental to him in that his property has been vandalised, causing him economic and psychological abuse and harm. 23. He further contends that the acts of the Defendant and his agents were intended to disrupt the status quo in place, so as to make it difficult to administer justice. 24. He deposes that unless stringent Orders are issued by the Court, and unless the Defendant is arrested and placed in ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 11 of 40

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custody, the suit will be rendered an academic exercise, and that he stands to lose all his properties without being allowed a fair trial. 25. It is his further deposition that it is only fair and just that, pending the determination of this matter, the Defendant be committed to jail so as to allow peace to prevail, and accordingly prays that the Defendant be committed to jail for contempt of Court for disobeying the Orders of this Honourable Court issued on 31 st July, 2025 for a term not DR A FT COP Y exceeding six (6) months or such other term as the Court may deem fit. 26. He ends his deposition by stating that if the orders sought are not granted, he will suffer irreparable loss and damage, the Defendant having threatened to continue with his illegal actions. Defendant’s/Respondent’s Response. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 12 of 40

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27. In response to the Plaintiff/Applicant’s application, the Defendant/Respondent’ filed a Replying Affidavit sworn on 5th March, 2026. 28. The Defendant/Respondent opposes the application and contends that the parcel of land known as Kericho/Kapkatet/1106, measuring approximately ten (10) hectares, was registered in the name of the late Kiplangat Arap Buses, his father, and that upon the death of the said registered proprietor a succession cause was filed in the DR A FT COP Y Kericho Magistrate's Court, being Cause No. E008 of 2020, Estate of Kiplangat Buses (Deceased). 29. He states that the Plaintiff/Applicant raised an objection in the said succession cause, claiming to be a beneficiary of the estate, and that the said objection was dismissed with costs vide the court's Ruling dated 29th August, 2023, the court having found that the Plaintiff/Applicant was neither a beneficiary nor a creditor of the estate of the said deceased. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 13 of 40

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30. He further states that the Plaintiff/Applicant thereafter purportedly filed a further protest of a similar nature, this time against the confirmation of the grant over the distribution of the estate land known as Kericho/Kapkatet/1106, and that the said protest was also dismissed vide the court's Ruling dated 10th June, 2025. 31. It is the Respondent’s deposition that following confirmation of the grant, the court distributed the estate and/ or land DR A FT COP Y among the beneficiaries of the estate, allocating him a portion measuring 1.25 hectares, together with corresponding allocations to the other beneficiaries as set out in the certificate of confirmation of grant. 32. He deposes that upon issuance of the confirmed grant, he and his co-beneficiaries proceeded to distribute the land among themselves, were issued with individual title deeds and that the parent parcel Kericho/Kapkatet/1106 was ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 14 of 40

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consequently closed upon subdivision, giving rise to new parcel numbers Kericho/Kapkatet/3868 to 3877. 33. It is also his deposition that even after the suit land was demarcated among the beneficiaries and fenced off, the Plaintiff/Applicant did not raise any protest or obtain any restraining orders in respect thereof. 34. He deposes that the property known as Kericho/Kapkatet/1106, being the property canvassed in DR A FT COP Y the suit, is no longer in existence, the said parcel having been closed upon subdivision as aforesaid. 35. It is further his deposition that, although he was the administrator of the estate of the deceased, that capacity was extinguished upon confirmation of the grant and the distribution of the estate land and issuance of title deeds to the beneficiaries, and that he accordingly has no capacity to be sued in the present suit. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 15 of 40

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36. He deposes that the dispute concerning land, as framed by the Plaintiff/Applicant, lies between the Plaintiff/Applicant and the registered proprietors of the parcels known as Kericho/Kapkatet/3870, 3871 and 3872, and that he has his own distinct parcel of land known as Kericho/Kapkatet/3873, which he occupies and utilises to the exclusion of the said proprietors, and in respect of which he has no contest with the Plaintiff/Applicant whatsoever. DR A FT COP Y 37. It is his contention that the 0.5 of an acre in respect of which this Honourable Court issued orders of non-occupancy is situated on the parcels of land known as Kericho/Kapkatet/3870, 3871 and 3872 and that the said 0.5 of an acre has not been interfered with in any manner. 38. He deposes that he has not acted in contravention of the orders of status quo (ante) issued by the Court on 31 st July, 2025. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 16 of 40

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39. The Defendant/Respondent concludes by stating that in the circumstances, the instant application has no merit and prays that the same be dismissed with costs. Issues for Determination. 40. The Plaintiff/Applicant filed his written submissions dated 17th March, 2026, while the Defendant/Respondent filed their written submissions dated 4th May, 2026. DR A FT COP Y 41. The Plaintiff/Applicant submits that it is an undisputed fact that he is the legal owner of a portion of land parcel Kericho/Kapkatet/1106 and onto that the and destroyed Defendant/Respondent trespassed developments thereon illegally and without any colour of right and while claiming ownership of the same and that these acts have violated his constitutional rights. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 17 of 40

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42. The Plaintiff/Applicant also submits that the Defendant/Respondent, having been duly served with the application, opposed it and that the Court issued an order on 31st July, 2025 directing the parties to maintain the status quo on terms that disputed 0.5-acre portion of the suit parcel was to be left vacant and unused by both parties pending determination of the suit. 43. The Plaintiff/Applicant further submits that, notwithstanding the clear terms of that consent order, the DR A FT COP Y Defendant/Respondent continued to enter the land and destroy his property and that this continued and incessant interference amounted to an illegality occasioning him irreparable loss and damage. 44. The Plaintiff/Applicant submits that the following issues are for determination; i. Whether the terms of the Order are clear. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 18 of 40

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ii. Whether the Defendant had knowledge of the terms of the Order. iii. Whether the Defendant failed to comply with the terms of the Order. 45. On these issues, the Plaintiff/Applicant also submits that there is clear evidence including a photograph annexed to the supporting affidavit that the Defendant disobeyed the Court's order despite being aware of its terms, by illegally entering the disputed portion and destroying the Plaintiff's tea bushes. DR A FT COP Y 46. The Plaintiff/Applicant further submits that this conduct violated his constitutional right to peaceful enjoyment of his property, and that the Court should accordingly issue summons for an inter-parties hearing and ultimately commit the Defendant to jail for a term not exceeding six months. 47. The Plaintiff/Applicant concludes his submissions by urging the Court to find that the Court the court order must be obeyed and that that the Defendant disobeyed it. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 19 of 40

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48. The Defendant/Respondent submits that a consent on status quo was recorded pending his response to the Plaintiff's application dated 18th July, 2025, whereby both parties agreed that the disputed 0.5-acre portion be kept off and the cutting of tea bushes stopped forthwith. 49. The Defendant identifies the following issues of determination; (a)Whether the Defendant is the DR A FT COP Y registered owner of the suit land Kericho/Kapkatet/1106. (b) Whether the Defendant has legal capacity to be sued in this suit. (c) Whether the Plaintiff purchased any land from the Defendant and is a purchaser for value. (d) Whether the Defendant acted in contempt of the status quo order dated 31st July, 2025. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 20 of 40

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50. On issues (a) and (b), the Defendant submits that the suit property Kericho/Kapkatet/1106 was registered in the name of the late Kiplangat Arap Buses (deceased), whose estate was determined in Succession Cause No. E008 of 2020, and that following confirmation of grant the land was demarcated and title deeds issued to seven beneficiaries under new title numbers, rendering Kericho/Kapkatet/1106 closed and non-existent. 51. He also submits that he is therefore not the registered owner DR A FT COP Y of the suit land, that the Plaintiff's assertion to the contrary is misleading and that as the title holders were never sued, the suit is fatally defective and should be struck out and the Preliminary Objection allowed. 52. On issue (c), the Defendant submits that rulings in the succession cause established that the Plaintiff was not a creditor of the estate, and that the sale agreements relied upon by the Plaintiff were contracted with one Sabina ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 21 of 40

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Cherono Buses who was not a beneficiary of the estate hence no sale agreement exists between the Plaintiff and the Defendant, or between the Plaintiff and the deceased registered owner, making the Plaintiff's claim untenable. 53. On issue (d), the Defendant submits that he has not violated the status quo order noting that the photographs relied upon by the Plaintiff are a replica of those filed in the earlier application and show no further destruction. It his further submission that the Plaintiff and his counsel failed to enjoin DR A FT COP Y the actual title deed holders who could have been identified as responsible for any interference with the 0.5-acre portion. 54. The Defendant submits that he has not encroached on or destroyed the tea bushes on the disputed portion, and urges the Court to dismiss the instant application and to allow the Preliminary Objection dated 5th March, 2026. Analysis and Determination. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 22 of 40

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55. Having considered the Plaintiff/Applicant's application, the response thereto and the rival submissions filed, my view is that the following issues arise for determination: a. Whether the contempt of Defendant the orders is in of this Honourable Court. b. Whether the Defendant should be committed to civil jail or whether he should be issued with a notice to show cause why he should not be committed to civil jail. c. Whether the OCS Kapkatet Police DR A FT COP Y Station should be directed to conduct investigations into the complaint reported vide OB No. 08/04/01/2025 and to provide a report to Court. d. Who should bear costs of the application. A. Whether the Defendant is in contempt of the orders of this Honourable Court. 56. Section 5(1) of the Judicature Act provides as follows: ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 23 of 40

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"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 that power shall extend to upholding the authority and dignity of subordinate Courts. 57. Section 29 of the Environment and Land Court Act further provides that: "Any person who refuses, fails or DR A FT COP Y 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." 58. In the Judicial Decision of North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, Civil Case No. 13 of 2014 ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 24 of 40

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[2016] eKLR the Court, citing with approval the text Contempt in Modern New Zealand, held 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 [the] civil [standard]) — (a) the terms of the order undertaking) (or injunction or were clear and unambiguous and were binding on the defendant; (b) the Defendant had DR A FT COP Y 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.” 59. Contempt proceedings are quasi-criminal in nature. Considering that they may result in deprivation of liberty, the standard of proof for contempt is correspondingly higher than the ordinary standard in civil cases. In the Judicial ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 25 of 40

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Decision of Gatharia K. Mutitika v Baharini Farm Ltd, Civil Application NAI 24 of 1985 [1985] eKLR the Court of Appeal held as follows; “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 offence DR A FT COP Y which can be said to be quasi- criminal in nature.” 60. On the first element, the terms of the Consent Order of 31 st July, 2025, are clear and unambiguous. The disputed 0.5 acre comprised in the suit parcel was to be left vacant, and neither the Plaintiff nor the Defendant was to use it pending the hearing and determination of this suit. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 26 of 40

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61. On the second element, the Defendant having been present through his advocate at the adoption of the Consent on 31 st July, 2025, had actual knowledge of its terms. In the Judicial Decision of Shimmers Plaza Limited v National Bank of Kenya Limited, Civil Appeal No. 33 of 2012 [2015] eKLR, the Court of Appeal held as follows; “Kenya’s right from growing the jurisprudence High court has reiterated that knowledge of a court order suffices to prove service and dispense with personal service for DR A FT COP Y the purposes of contempt proceedings.” 62. The Court of Appeal while citing Judicial Decision of Basil Criticos v Attorney General & 8 Others [2012] eKLR, held as follows; “the law has changed and as it stands today knowledge supersedes personal service ..... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 27 of 40

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personal service must be proved is rendered unnecessary.” (Emphasis mine) 63. The Defendant/Respondent was a party to, and through his advocate on record participated without reservation in, the Consent dated 30th July, 2025, which was adopted as the Order of this Court on 31st July, 2025. 64. In my view, therefore, the first element requiring the order not to be ambiguous and the second requiring proof that the party against whom orders of contempt are sought DR A FT COP Y had knowledge of the order have been satisfied. 65. The third and fourth elements are that the applicant must prove that the Defendant has acted in breach of the terms of the order and that the Defendant’s conduct was deliberate. 66. In his replying affidavit the Defendant/Respondent has raised an objection that he is not the registered proprietor of the ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 28 of 40

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land formerly known as Kericho/Kapkatet/1106 and lacks capacity to be sued in respect of it, the title having been closed upon subdivision. He explains that this was pursuant to Kericho CM Succession Cause No. E008 of 2020 and that Kericho/Kapkatet/1106, upon sub-division, gave rise to Kericho/Kapkatet/3868 to 3877 and that he is the registered owner of Kericho/Kapkatet/ 3873. 67. The Defendant/Respondent’s evidence of the fact of the confirmed grant and subsequent subdivision has not been DR A FT COP Y controverted by any further affidavit from the Plaintiff/Applicant. I take them to be true. This is in light of the observation and finding in Republic v County Government of Machakos 2019 KEHC8492(KLR). 68. In Republic Machakos(Supra) v County Government of The Learned Judge grappled with the questions pertaining to the evidentiary value of depositions made by one party and lack of responses to those ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 29 of 40

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depositions by the other party. While citing with approval various decisions, he observed and found as follows: 30.However, the Respondent contended by way of grounds of opposition and submissions, that there is no evidence that the said two parcels are one and the same property since the evidence adduced falls short of proving he same. There was however no replying affidavit filed on behalf of the Respondent. In those circumstances, I agree with the position in Kennedy Otieno Odiyo & 12 Others vs. Kenya Electricity Generating Company Limited [2010] eKLR wherein the court held: “The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the application in its supporting affidavit. Thus what was deposed to was not entered nor rebutted by the DR A FT COP Y ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 30 of 40

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Respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant.” 31. Similarly, in Mohammed & Another vs. Haidara [1972] E.A 166 at page 167 paragraph FH, Spry V.P considered the failure by a party to file any reply to allegations set out in evidence and expressed himself as follows: “The respondent made no attempt to reply to these allegations and they therefore remain unrebutted…Here, the respondent’s affidavit gives no material facts and the only real evidence of facts is that contained in the appellant’s affidavit. In these circumstances, it seems to me that a replying affidavit was essential. There was no need for it to be prolix but it should have made clear which of the facts alleged by the appellants were denied…” 32. In Kenya Akiba Micro Financing Limited DR A FT COP Y ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 31 of 40

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vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows: “In my view, a statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter.” 69. In light of the unrebutted deposition by the Defendant, it would seem that the character of subject matter of the suit has seen changed. Kericho/Kapkatet/1006 The has suit since been parcel i.e. sub-divided. Further, the Defendant deposes that the 0.5-acre portion DR A FT COP Y which is subject of the court order is comprised in Kericho/Kapkatet/3870, 3871 and 3872 and that he (The defendant) is now the registered owner of Kericho/Kapkatet/3873. 70. Further, the Plaintiff/Applicant has annexed photographs "DKS 3(a-e)", the OB report at Kapkatet Police Station, and a damage assessment report from the Kapkatet Ward ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 32 of 40

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Agriculture Office. These are intended as evidence of the alleged breach of the consent order of 31st July, 2025. 71. I have noted that the damage assessment report is dated 16th July, 2025. The Agricultural officer reports a farm visit on 15th July, 2025. Both dates precede the alleged entry of 4th January, 2026 and the Consent Order of 31 st July, 2025. The report cannot, therefore, be evidence of loss occasioned by conduct occurring after this court issued the order whose breach is complained of. DR A FT COP Y 72. The Defendant/Respondent deposed that the photographs annexed to the present application are identical to those annexed to the original application dated 18 th July, 2025 and depict the same pre-existing state of the disputed portion rather than any fresh destruction occurring on or after 4 th January, 2026. Again, this has not been rebutted. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 33 of 40

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73. Bearing all these facts and circumstances in mind, I am unable to find that the Defendant has acted in breach of the terms of the order which order was in respect of Kericho/Kapkatet/1106; a parcel of land that no longer exists. 74. There is no doubt that the Plaintiff/Applicant is aggrieved by certain activities that are going on the suit parcel while there is a court order in force. However, he needs to join the owners of the parcel of land in which the 0.5-acre portion is DR A FT COP Y domiciled and subsequently seek orders against them. 75. In light of the deposition by the Defendant and documents annexed to his replying affidavit, finding that the Defendant I am unable to make a is guilty of any conduct that might termed as deliberate. 76. Article 50(1) of the Constitution guarantees every person the right to a fair hearing, and a finding of contempt ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 34 of 40

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ought not to be founded on conduct that may properly be attributable to persons who are not before the Court and have had no opportunity to be heard. 77. I must mention, however, Defendant/Respondent was that the not only conduct of the mischievous but disappointing to the extent that he misled the court and entered into the consent order of 31 st July, 2025 while well aware of the facts which he now deposes to in his replying affidavit. The preliminary objection was filed by him after he DR A FT COP Y the consent was entered into by him, which consent culminated into the order of this Court issued on 31st May, 2025. This court takes great exception with the conduct of the Defendant and urges extreme caution in the future. 78. More specifically, the Defendant must have been aware of the fact of sub-division of Kericho/Kapkatet/1106 and must have also been aware that the 0.5-acre portion which is subject of the consent order was at the time of the said ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 35 of 40

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consent comprised in Kericho/Kapkatet/3870, 3871 and 3872 which parcels are not registered in his name. 79. It is also absurd that the Defendant now mounts a defence as to his capacity to be sued and to bound by an order which was issued by this Court by reason of him consenting to it. 80. Given the high threshold applicable to contempt proceedings, the fact that the subject matter of the suit has been sub-divided and is now registered in the names of DR A FT COP Y persons who are not parties to this suit and further on account of the fact that the acts complained of cannot be directly attributed to the Defendant who owns a completely different parcel of land, this Court is not persuaded that on 4th January, 2026 the Defendant breached the Order of this court issued on 31st July, 2025 deliberately or at all as alleged. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 36 of 40

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B. Whether the Defendant should be committed to civil jail or whether he should be issued with a notice to show cause why he should not be committed to civil jail. 81. Given my finding on issue (A) above, the question of committal to civil jail and/or issuance of a notice to show cause is not ripe for determination. C Whether the OCS Kapkatet Police Station should be DR A FT COP Y directed to conduct investigations into the complaint reported vide OB No. 08/04/01/2025 and to provide a report to Court. 82. Under prayer (b) of the application under consideration, the Plaintiff/Applicant seeks that the OCS Kapkatet Police Station be directed to conduct an investigation as to the Defendant’s behaviour as reported vide OB No. 08/04/01/2025 and provide a report before this Honourable Court. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 37 of 40

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83. There is evidence on the Court record, in the form of the OB extract marked "DKS 4", that a report was made at Kapkatet Police Station. 84. I want to believe and have every reason to believe that once a report is made to the police, they are under obligation to investigate it and make a decision on the next steps. In the same way, the OCS Kapkatet Police Station knows what he should do with the report made to him by the DR A FT COP Y Plaintiff/Applicant and does not need supervision from this court. In any event, he is not a party to these proceedings. D. Who should bear costs of the application? 85. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 38 of 40

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86. In the foregoing paragraphs, I have taken issue with the conduct of the Defendant. He had knowledge that he was no longer an administrator of the estate of the deceases registered owner of the suit parcel and also knew that the suit parcel had been subdivided but held out as having capacity and proceeded to sign a consent, essentially misleading this court. I shall not grant him costs of the application. DR A FT COP Y Disposition. 87. Taking the foregoing into consideration, I find that the Plaintiff/Applicant's Notice of Motion application dated 21 st January, 2026 lacks merit and it is hereby dismissed with no order as to costs. 88. It is so ordered. ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 39 of 40

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DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 1ST DAY OF OCTOBER, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Koske for the Respondent. No appearance for the Applicant. Mr. Makori – Court Assistant. DR A FT COP Y ----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E026 OF 2025[KERICHO] Page 40 of 40

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