Hassan v Muhamed & 3 others

II. Background 3. The dispute concerns Plot Nos. R4012 and R6189 within Wajir Township. Following determination of the appeal, the Court issued the following orders on 28th February 2024: 1. That the County Director of Physical Planning and the County Surveyor be and hereby directed to visit Plot Nos. R4012 and R6189 Wajir Township and establish their boundaries physically on the ground within the next 90 days from today. 2. That once the plot boundaries are established any party found to have encroached onto the others plot shall vacate within 30 days of the boundaries being established, failing which an eviction order issue on application. 3. That the County Director and County Surveyor will le in court a report together with an illustrated sketch plan denoting the position of the two plots on the ground within 90 days from the date of this Judgment. 4. That each part shall be at liberty to apply. 5. That each party will bear their own costs of the appeal and of the court below. 3. A report dated 13th May 2024 was subsequently led. On 12th November 2024, the Court recorded that the County Government had led its report as directed in the appeal judgment, declared itself functus ocio, permitted the parties to pursue implementation of the report, and ordered the le closed. 4. The present application principally challenges a later report dated 3rd November 2025. The applicant contends that the report was produced through a purported Land Tribunal Committee which unlawfully revisited questions of ownership already determined by the Court. III. Parties’ Cases 6. The application is supported by the applicant’s adavit and his further adavits sworn on 26th June and 9th July 2026 respectively. He contends that the Court authorized the county ocials to establish boundaries, not to constitute or participate in another body determining ownership of the properties. 7. He alleges that the 2nd respondent, acting in collaboration with the 3rd and 4th respondents, initiated or facilitated the preparation of the report dated 3rd November 2025. According to him, that report reproduced ndings of the subordinate court which had been displaced by the appeal judgment, thereby usurping this Court’s judicial authority. 8. The applicant further alleges that the 1st respondent relied upon the impugned report to uproot his beacons and replace them with concrete beacons. He maintains that these acts amounted to deliberate disobedience of the Court’s orders. 9. In his written submissions, the applicant relies upon Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others [2014] eKLR and Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR concerning the Court’s contempt jurisdiction and the elements of civil contempt. He also cites Kioni & 3 Others v National Disciplinary Committee of the Jubilee Party & 2 Others; Chege (Contemnor) [2024] KEHC 11441 (KLR) for the proposition that a person’s absence from the original proceedings does not necessarily preclude contempt liability. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 2

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10. The 1st respondent opposes the application through his replying adavit sworn on 16th June 2026. He maintains that the Court’s directions were implemented through the report dated 13th May 2024. He relies upon the subsequent committee report in support of his position concerning the location of the properties and denies having disobeyed the Court’s orders. 11. In his submissions, the 1st respondent argues that the application fails to establish the elements of contempt and constitutes an abuse of process. He relies, among other authorities, upon Mweru, Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR. 12. The 2nd respondent opposed the application through the replying adavit sworn by Brian Ikol on 3rd July 2026. It denies that the Commission authored, signed or issued the report dated 3rd November 2025 and attributes that report to the Wajir County Government Land Tribunal Committee. It further denies that any administrative referral involving its coordinator constituted disobedience of the Court’s orders or assistance in another person’s contempt. The 2nd respondent did not le written submissions. 13. The 3rd and 4th respondents opposed the application through the adavit of Edward Mucheru dated 12th June 2026. He states that he is the County Physical Planner and is authorized to respond on their behalf. He refers to a further visit undertaken with the County Surveyor on 5th June 2026, apologizes for the delay, and maintains that the Court’s directions have been complied with. The 3rd and 4th respondents likewise did not le written submissions. 14. The applicant disputes those explanations and challenges Mr. Mucheru’s authority to swear the adavit. Only the applicant and the 1st respondent led written submissions. I have considered those submissions alongside the adavits on record. The absence of submissions from the 2nd, 3rd and 4th respondents does not render the application unopposed, since they led replying adavits, nor does it relieve the applicant of the burden of establishing contempt against each of them. IV. Issues for Determination 15. The substantive issue is whether the applicant has established contempt of the orders issued on 28th February 2024 against any of the respondents. Arising from that issue are whether the impugned report can be invalidated through this application and who should bear costs. V. Applicable Legal Principles 16. At the outset, the motion does not identify the statutory provisions under which it is brought. Applications seeking punishment for contempt require particular care because of their possible consequences for liberty and property. Nevertheless, that omission does not, by itself, render the application incompetent. Order 51 rule 10(1) of the Civil Procedure Rules expressly prevents refusal of an application merely because the enabling provisions have not been stated. I therefore determine the application on its substance. 17. The contempt jurisdiction protects the authority of the Court and the eective administration of justice. Its exercise must, however, rest upon proof of the prescribed elements. The importance of obedience to court orders does not dispense with the obligation to establish that the particular person sought to be punished committed the particular contempt alleged. 18. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court identied four essential elements: a clear and unambiguous order binding upon the alleged contemnor; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 3

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knowledge or proper notice of its terms; conduct breaching those terms; and deliberate disobedience. These requirements are cumulative. 19. The requirement of clarity is fundamental. In Ochino & Another v Okombo & 4 Others [1989] KLR 165, the Court of Appeal emphasized that punishment for breach of an injunction requires clear and unambiguous terms. A contempt court must identify the obligation imposed and the conduct constituting its breach. It cannot retrospectively enlarge the order to encompass an obligation that was not imposed. 20. In Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, the Court of Appeal recognised that proved knowledge of an order may dispense with strict proof of personal service in the circumstances addressed by that decision. Knowledge nevertheless concerns notice of an existing obligation; it does not create an obligation absent from the order. 21. The standard of proof is heightened. In Mutitika v Baharini Farm Limited [1985] KLR 229, the Court of Appeal held that proof of contempt must exceed the ordinary balance of probabilities and approach, though not exactly attain, proof beyond reasonable doubt. Accordingly, liability cannot rest upon conjecture or general accusations. 22. Non-party status does not confer immunity from contempt. A person who is not a litigant may incur liability where an order is enforceable against that person or where the person knowingly assists its breach or deliberately frustrates its operation. The applicant’s reliance upon Kioni is therefore relevant. What remains necessary is proof of the legal and factual connection between that person’s conduct and the order allegedly breached. 23. In Cogno Ventures Limited & 4 Others v Bia Tosha Distributors Limited & 15 Others [2023] KESC 33 (KLR), the Supreme Court rejected the introduction of new persons through the application before it. That decision must be understood within the Supreme Court’s appellate jurisdiction and procedural framework. It does not establish that every contempt application against a non-party before a trial court is necessarily incompetent. 24. Finally, contempt proceedings must serve their proper purpose. They cannot be used to obtain substantive relief concerning a later administrative decision without establishing the alleged contempt. As explained in Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR, misuse of judicial process for an improper purpose may constitute abuse of process. VI. Analysis and Determination 25. The starting point is the precise order alleged to have been disobeyed. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court identied four cumulative requirements for civil contempt: a clear and binding order, knowledge of its terms, breach, and deliberate disobedience. The applicant must therefore connect the conduct complained of to an obligation imposed by the order of 28th February 2024. Allegations of unlawful conduct, without that connection, do not establish contempt. 26. The order imposed immediate duties upon the 3rd and 4th respondents to visit the properties, establish their boundaries and le a report accompanied by an illustrated sketch plan. It also imposed a conditional obligation upon any party found to have encroached onto the other’s property to vacate within thirty days of establishment of the boundaries. These obligations must be examined separately against each respondent. 27. The 2nd respondent was not a party to the appeal and was introduced through the contempt application. In Cogno Ventures Limited & 4 Others v Bia Tosha Distributors Limited & 15 Others https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 4

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[2023] KESC 33 (KLR), the Supreme Court rejected the introduction of new persons through the application before it. That holding arose within the Supreme Court’s appellate jurisdiction and procedural framework. It does not establish that every contempt application against a non-party before this Court is necessarily incompetent. 28. The applicant relies upon Kioni & 3 Others v National Disciplinary Committee of the Jubilee Party & 2 Others; Chege (Contemnor) [2024] KEHC 11441 (KLR), where the Court recognized that absence from the original proceedings does not necessarily preclude contempt liability. I accept that principle. The question is whether the applicant has established an obligation enforceable against the 2nd respondent, or its knowing participation in conduct that frustrated obedience to the order. 29. The order imposed no duty upon the 2nd respondent. The applicant alleges that the 2nd respondent facilitated a parallel determination of ownership, while the 2nd respondent denies authorship of the impugned report and assistance in any breach. Even assuming an administrative referral involving the 2nd respondent’s coordinator, the applicant has not demonstrated how that referral contravened an identiable term of the order or prevented the 3rd and 4th respondents from performing their courtdirected duties. The applicant’s own case acknowledges that the 3rd and 4th respondents prepared the earlier report. 30. The 2nd respondent’s acknowledgment of the order does not cure that deciency. Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR recognizes the relevance of proved knowledge to the requirement of notice. Knowledge does not, however, create an obligation absent from the order. The application against the 2nd respondent therefore fails because the necessary connection between its alleged conduct and disobedience of the order has not been established. 31. As regards the 1st respondent, the duties to undertake the site visit, establish boundaries and prepare the report were entrusted to the 3rd and 4th respondents. The 1st respondent was not required to perform those functions, and no basis has been established for treating him as their agent. Nevertheless, the conditional obligation to vacate could apply to the 1st respondent if he was found to have encroached onto the applicant’s property following establishment of the boundaries. 32. To establish contempt of that provision, the applicant had to demonstrate that the prescribed condition had arisen against the 1st respondent, that the resulting duty to vacate had become enforceable, and that the 1st respondent deliberately failed to comply. The applicant has not established that sequence. His principal complaint is that the 1st respondent relied upon the later report to remove and replace beacons. 33. In Ochino & Another v Okombo & 4 Others [1989] KLR 165, the Court of Appeal emphasized that punishment for breach of an injunction requires clear and unambiguous terms. Applying that principle, the Court cannot retrospectively convert the boundary establishment directions into an injunction prohibiting interference with beacons. The alleged conduct may found another grievance, but its breach of the particular obligation contained in the judgment has not been established. 34. Nor has the applicant demonstrated that the alleged interference deliberately frustrated performance of the order. In Mutitika v Baharini Farm Limited [1985] KLR 229, the Court of Appeal prescribed a standard of proof higher than the ordinary balance of probabilities, approaching though not exactly attaining proof beyond reasonable doubt. The assertion that the 1st respondent acted upon a report considered unlawful by the applicant does not, without the necessary connection to the order, satisfy that heightened standard. 35. Turning to the 3rd and 4th respondents, the order of 12th November 2024 is material. The Court recorded that the report dated 13th May 2024 had been led as directed in the appeal judgment, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 5

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permitted the parties to pursue its implementation, and closed the le. That order has not been set aside. The applicant likewise acknowledges the earlier report and principally challenges the involvement of the 3rd and 4th respondents in the subsequent report dated 3rd November 2025. 36. The adavit led on behalf of the 3rd and 4th respondents refers to a further visit in June 2026 and contains an apology for delay. That account must be considered alongside the earlier report and the order recording its ling. Subsequent compliance would not automatically extinguish a proved earlier contempt. Equally, the apology cannot, without more, establish the particular contempt alleged in this application. Under Mweru, the applicant must prove the specic breach and its deliberate character. 37. The applicant contends that participation in the later committee process exceeded the mandate of the 3rd and 4th respondents. He has not, however, identied a term of the judgment prohibiting that participation or demonstrated how it defeated the obligations imposed by the judgment. An allegation that the 3rd and 4th respondents acted without lawful authority is not, by itself, proof that they disobeyed a court order. The requirement of an identiable obligation and an established breach, emphasized in Ochino and Mweru, remains unsatised. 38. The 2nd, 3rd and 4th respondents led replying adavits but no written submissions. Their failure to le submissions does not amount to an admission of contempt or relieve the applicant of the burden of proof. Likewise, even if the challenged adavit led on behalf of the 3rd and 4th respondents were excluded, the applicant would still have to establish the necessary connection between the alleged conduct and the order. It is therefore unnecessary to determine the disputed authority of its deponent for purposes of disposing of this application. 39. The Court’s earlier declaration that it was functus ocio does not, by itself, prevent enforcement of its orders. The distinction between reopening a concluded determination and enforcing it is reected in Cogno Ventures, where the Supreme Court directed that questions concerning disobedience be addressed before the High Court. The diculty here is not simply that the appeal le was closed, but that the applicant has not established disobedience warranting exercise of the contempt jurisdiction. 40. Prayer 2 seeks a declaration that the report dated 3rd November 2025 is an unlawful verdict. Contempt has not been established as the foundation for that relief. Determining the committee’s authority, the validity of its proceedings and the eect of its report requires an appropriately framed challenge. In Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR, the Court of Appeal explained that judicial process becomes abusive when employed for an improper purpose. To the extent that the applicant seeks to use contempt proceedings to obtain a fresh substantive determination concerning the later report within the concluded appeal, the application misuses that process. 41. That conclusion does not adopt the 1st respondent’s wider allegations concerning the applicant’s motives in earlier criminal proceedings. The nding concerns the attempted use of contempt jurisdiction to secure substantive relief unsupported by proved disobedience. I make no determination on the report’s validity or the competing proprietary claims. 42. The applicant has consequently failed to establish an obligation breached by the 1st or 2nd respondent, knowing assistance in an established breach, or disobedience by the 3rd and 4th respondents of the duties imposed upon them. Since the requirements in Mweru are cumulative, the absence of an established breach is dispositive. Separate ndings on notice and wilfulness would not alter the outcome. The application therefore fails against all four respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 6

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43. Costs ordinarily follow the event, subject to the Court’s reasoned exercise of discretion. The respondents have successfully resisted the application, and no sucient reason has been shown to depart from that principle. The applicant shall therefore bear the respondents’ costs of the application. VII. Disposition 44. Accordingly, the Court makes the following orders: i. The Notice of Motion dated 13th May 2026 is dismissed in its entirety. ii. The applicant shall bear the respondents’ costs of the application. iii. The appeal le shall remain closed. Orders accordingly. DATED, SIGNED AND DELIVERED IN GARISSA THIS 5TH DAY OF OCTOBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 3 of 3 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6179/eng@2026-10-05 7

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