Elisha Kiprono v Vision Fund Kenya

5. The deponent further states that the respondent has an established practice and policy of instructing recovery of security only against its own defaulting clients and/or their registered guarantors, and only pursuant to duly executed loan and/or guarantee documentation specifically identifying the security pledged. According to the it no such documentation exists or could exist in respect of the applicant, who remains a stranger to it. 6. It is further averred that the respondent did not instruct, authorize, direct or in any manner sanction any auctioneer to attach, seize, proclaim or otherwise interfere with any livestock or property belonging to the Applicant. He states that its practice is to engage only duly licensed auctioneers, who are required, in every recovery instructed by the respondent, to issue and serve upon the affected debtor a proclamation notice and a notice of attachment prior to any attachment being affected. 7. The respondent further contends that the applicant has not exhibited any proclamation notice, notice of attachment, demand letter, loan agreement, guarantee or other document showing that the auctioneer or auctioneers who allegedly seized his livestock were acting for or upon the instructions of the respondent. In the absence of such documentation, the respondent states that it is unable to trace, verify or relate the applicant’s claim to any client file or recovery exercise within its records. 8. More importantly, the respondent depones that it is beyond its power to comply with the order of 29th July, 2026, not by reason of any willful or deliberate disobedience, but because it does not have, has never had and cannot release livestock which it never took. It is further stated that the Respondent does not maintain any yard or holding facility for livestock or other property recovered in the course of its lawful recovery exercises against defaulting clients, which, according to the respondent, further confirms that it could not have taken or retained custody of the Applicant’s livestock. 9. The respondent consequently prayed that the application be dismissed with costs. In the alternative and without prejudice to the foregoing, it sought that the applicant be directed to particularize and disclose the basis upon which he connects the respondent to the alleged seizure of his livestock, prior to any further consideration of the committal proceedings. The respondent also sought review, variation or setting aside of the order of 29th July, 2026 as against it, on the ground that the same was being enforced against a party shown to be a stranger to the transaction giving rise to the applicant’s claim.

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10. The applicant filed a Supplementary Affidavit sworn on 31st August, 2026. He deponed that, in paragraphs 4 and 5 of the Replying Affidavit, the respondent confirmed that the he had never been its client and that it had never held his livestock. He further contends that the respondent confirmed that it only instructs recovery against defaulting clients and that the applicant was never its client. Further, he deponed that he wrote a letter to the OCS Kipkaren Salient Police Station on 17th August, 2026 requesting documentation relating to the police operation. He deposes that this was necessitated by the fact that, during the alleged ambush by individuals claiming to have been sent by the respondent, he identified officers attached to Kipkaren Salient Police Station. According to him, after writing to the OCS Kipkaren Salient Police Station, he confirmed that the police had received a Court order. He states that from the accompanying documents he established that, under Eldoret MCCCMISC E119 of 2026, Timothy Wanjala Wekesa T/A Timpech Auctioneer obtained an order to attach and/or recover livestock and household properties proclaimed for the amount in default. The applicant deponed that he was subsequently informed by the officers that the other persons who had been in his compound were officers from Vision Fund. 11. The applicant further deponed those photographs taken on 14th July, 2026 represented the situation on the suit parcel. He maintains that, despite the respondent alleging that it did not have his livestock, he had demonstrated that the livestock were indeed taken. He therefore prayed that the application be allowed. 12. The application was canvassed by way of written submissions. I have considered the Notice of Motion, the Replying Affidavit, the Supplementary Affidavit and the submissions filed by the applicant. The issue for determination is; whether the Respondent is in contempt of the orders of this Court and ought to be punished accordingly. 13. It is not disputed that on 29th July, 2026 this Honourable Court issued orders for the applicant’s six cows and six sheep to be released to him. The said orders were made in the presence of the respondent’s counsel, Ms. Bosire. It is therefore clear that the respondent was aware of the order. I have considered the documents filed by the applicant. There is an order and verification relating to Eldoret MCCCMISC E119 of 2026, in which Timothy Wanjala Wekesa T/A Timpech Auctioneers, who had been instructed by the respondent, was granted security to attach and repossess livestock and household properties proclaimed for the amount in default. The officers from Kipkaren Salient Police Station thereafter offered security and the applicant’s home was raided, resulting in the confiscation of six cows and six sheep. The photographs placed before the Court demonstrate that the exercise did indeed take place. The applicant’s name,

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however, does not appear on the list of alleged defaulters in the document annexed in the miscellaneous application. 14. The respondent maintains that it did not instruct, authorize, direct or in any manner sanction any auctioneer to attach, seize, proclaim or otherwise interfere with the applicant’s livestock or property. The question that therefore arises is whether the respondent deliberately and willfully disobeyed the order of 29th July, 2026 by failing to release the livestock. 15. The applicable principles governing civil contempt are well settled. In Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court identified the matters that an applicant must establish in contempt proceedings, including the terms of the order, knowledge of those terms by the alleged contemnor and failure to comply with the order. Contempt of Court is conduct or action that defies or disrespects the authority of the Court. Black’s Law Dictionary, 9th Edition, defines contempt as conduct that defies the authority or dignity of a court or legislature and which interferes with the administration of justice. The purpose of punishing for contempt is, among other things, to uphold the dignity and authority of the Court, ensure compliance with its orders and directions, preserve respect for due process and maintain public confidence in the administration of justice. A party may therefore be cited for contempt where there is established disobedience of an order directed at him. 16. In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KLR 828, Ibrahim, J. (as he then was), underscored the importance of obedience to court orders and stated that it is the plain and unqualified obligation of every person against whom an order is made by a Court of competent jurisdiction to obey it unless and until it is discharged. At the same time, contempt proceedings are quasi-criminal in nature and the standard of proof required is higher than proof on a balance of probabilities. The Applicant must establish wilful and deliberate disobedience of the Court order. In Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, the Court stated that contempt of Court is an offence of a criminal character and that the alleged contempt must be proved satisfactorily. The Court further observed that the standard of proof should be higher than on a balance of probabilities, though not exactly beyond reasonable doubt, and that the gravity of the alleged contempt must be taken into account. 17. In the present matter, the respondent does not dispute knowledge of the order requiring release of the livestock. Its position, however, is that the applicant is not its client, that it never attached his livestock and that it does not have custody or control of the livestock.

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The respondent therefore contends that it cannot be punished for failing to perform an act which it is factually unable to perform. Contempt proceedings require proof of wilful and deliberate disobedience. It would, in my view, be unjust to punish a person for failure to perform an act which, on the evidence before the Court, that person has demonstrated to be factually incapable of performing. 18. I have considered the applicant’s evidence that the livestock were taken from his premises, the photographs showing the exercise, and the documents relating to the police security that was provided during the exercise. I also take note of the fact that the respondent’s auctioneer appears in the order in Eldoret MCCCMISC E119 of 2026. These matters raise legitimate questions concerning the circumstances under which the applicant’s livestock were taken. However, the respondent has consistently denied having possession of the livestock and has maintained that it never instructed their attachment. The applicant’s evidence establishes that the livestock were taken, but the question of who ultimately had custody and control of the livestock, and the precise circumstances in which they were taken, remains disputed. There is a further and important consideration. The order of 29th July, 2026 was made at an interlocutory stage of the substantive proceedings. The substantive suit between the parties remains pending and the issues arising from the underlying dispute have not been finally determined. 19. The Court must therefore exercise caution so as not to determine, through contempt proceedings, matters which are yet to be conclusively determined in the substantive suit. In particular, the question whether the respondent was responsible for the attachment and seizure of the applicant’s livestock, whether the livestock were taken pursuant to instructions attributable to the respondent, and whether the respondent has custody or control of the said livestock are matters that have a bearing on the substantive dispute. The order of 29th July, 2026 directing the release of the livestock was made at an interlocutory stage. It was intended to address the immediate circumstances that had arisen before the Court. It ought not, in my view, to be construed as a final determination of the substantive question of liability or as a conclusive finding that the respondent had custody or control of the applicant’s livestock. 20. This distinction is important because a finding of contempt is a serious matter. Contempt proceedings are quasi-criminal in nature and may result in deprivation of a person’s liberty. The Court must therefore be satisfied, to the requisite standard, not only that the order was clear and known to the alleged contemnor, but also that the alleged contemnor had the ability to comply with it and deliberately and wilfully failed to do so. In the present case, the applicant has demonstrated knowledge of the order by the respondent. However, knowledge of an order, without more, does not automatically establish contempt. The applicant must also demonstrate that the respondent was in a position to

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comply with the order and deliberately refused to do so. The respondent’s assertion that it does not have custody or control of the livestock cannot, in the circumstances of this case, simply be disregarded. Whether that assertion is ultimately correct is a matter that may properly be determined upon the full hearing of the substantive suit and upon consideration of all the evidence relating to the circumstances under which the livestock were attached and by whom they were taken. 21. It would therefore be inappropriate, through the present contempt proceedings, to make a final determination of those disputed questions where the substantive suit is still pending. If the respondent were to be committed for contempt on the basis that it presently has custody or control of the livestock, such a finding would substantially predetermine an issue that remains live in the substantive proceedings and could effectively overtake the hearing of the substantive suit. The Court must distinguish between disobedience of a clear Court order and a genuine dispute as to whether the alleged contemnor is in a position to comply with that order. That distinction assumes particular importance in the present case because the respondent disputes having possession, custody or control of the livestock in question. 22. I also take cognizance of the fact that the power to punish for contempt is a discretionary power which must be exercised cautiously and sparingly. In Carey v Laiken, 2015 SCC 17 (16th April 2015), the Court emphasized the need for restraint in the exercise of the contempt jurisdiction, noting that the contempt power is an enforcement power of last resort. In the circumstances of this case, and having considered the material placed before the Court, the interlocutory nature of the order sought to be enforced, the fact that the substantive suit remains pending, and the respondent’s disputed ability to comply with the order, I am not satisfied that the applicant has proved wilful and deliberate disobedience to the requisite standard. 23. I find that although the order of 29th July, 2026 was valid and the respondent was aware of it, the applicant has not established that the respondent deliberately and wilfully disobeyed the order. I am also of the view that to make a finding of contempt on the present material would, in effect, require this Court to conclusively determine matters that are properly reserved for determination in the substantive suit. The contempt jurisdiction ought not to be employed as a means of determining the substantive rights of parties where those rights remain the subject of pending proceedings. Consequently, the Notice of Motion dated 4th August, 2026 is hereby dismissed and each party shall bear its own costs. 24. Mention on 15th October, 2026 for compliance with Order 11 of the CPR.

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25. Ruling dated, signed and delivered electronically in Eldoret this 25 th day of September, 2026 M.E Aligula- RM In the presence of C/A : Mr Lepatoiye

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