Analysis and Determination
8.The issue for determination by this court is whether the 2nd Respondent, Yusuf Abdi Hussein and Omar Ibrahim Abdi should be cited for contempt.
9.It is not disputed that on 24th April 2023, this court issued orders pending delivery of its ruling with respect to the application dated 2nd September 2022. The ruling remains pending. The said application dated 2nd September 2022 was filed by the Plaintiffs, who are seeking for an order of interlocutory injunction, restraining the 2nd Respondent from undertaking or continuing with the construction works on the suit property, pending the hearing and determination of the appeal.
10.In the Order dated 24th April 2023, this court directed that the prevailing status quo be maintained, meaning that there should be no further development on the suit property until the delivery of the ruling.
11.In their application, the Appellants aver that the contemnors had notice and knowledge of the subject order, the order having been made in Court in the presence of their advocate on record, Mr. Abdirizak, and the Appellants/Applicants having effected service on the same parties.
12.It is trite that the power of a court to hold a party in contempt is for the purpose of upholding the rule of law. That is what was stated in Teachers Service Commission vs Kenya National Union of Teachers & 2 Others eKLR:
13.The Black’s Law Dictionary (Ninth Edition) defines Contempt of Court as:-
14.The contempt alleged in this matter is civil contempt, which is with respect to disobedience of the orders of this court. Halsbury’s Law of England, Vol 9(1) 4th Edition draws a distinction between criminal contempt and civil contempt in the following manner:
16.The substantive law governing contempt proceedings is found in Section 5 of the Judicature Act, which provides:
17.The English law applicable in England at the time the alleged contempt was committed is applicable in this country. This position was affirmed by the Court of Appeal in Christine Wangari Chege vs Elizabeth Wanjiru Evans & Others (2014) eKLR where it observed as follows:-
18.The English law that is applicable in this matter is Part 81 of the Civil Procedure (Amendment No 3) Rules 2020. The courts in Kenya have applied a condensed approach to the elements of civil contempt. In Cecil Miller vs Jackson Njeru & Another  eKLR, the court outlined the ingredients for contempt of court orders as follows :-
19.These elements were similarly laid down in North Tetu Farmers Company Ltd vs Joseph Nderitu Wanjohi  eKLR, where the court relied on the text titled ‘Contempt in Modern New Zealand’ which provides as follows:
20.There is no doubt that the orders of this court, requiring the Respondents to cease any further construction were clear, unambiguous and binding upon them. As to whether the Respondents had knowledge and notice of the said order, the Applicants have rightly asserted that the Respondents’ Counsel were present in court when the said orders were made. This is reflected on the record of the court.
21.The Appellants have also exhibited an Affidavit of Service which shows that the order of the court dated 24th April 2023 was served on the Respondents on 25th April 2023. The Appellant’s process server deposed that he served the orders on the guard and masons that were present on the project site and that he explained the contents and effect of the said order.
22.Indeed, the Court of Appeal has rendered itself on this matter, and held that knowledge of an order by a contemnor’s advocate suffices for contempt proceedings. In Shimmers Plaza Limited vs National Bank of Kenya (2015) eKLR, the Court of Appeal held as follows:
23.The element of proper knowledge and notice of the court’s order has been satisfied.
24.The other element to be satisfied is whether the Respondents are in breach of the terms of the order. The Appellants have presented photographs dated 4th May 2023 which show construction workers on the suit property at work. These photographs are time-stamped and have duly been accompanied by a certificate confirming the accuracy and manner of production of the computer printouts.
25.Indeed, while the level of activity on the suit property appears minimal, they all the same constitute a breach of this court’s orders, which should have ceased all construction activities on the suit property. These activities have been undertaken deliberately.
26.The Appellants have sought to cite Yusuf Abdi Hussein and Omar Ibrahim Abdi for the 2nd Respondent’s contemptuous actions. It is trite that a company always acts through it Directors. The two have not denied that they are Directors of the 1nd Respondent. The two have also not denied that the workers captured in the photographs were working under their directions.
27.This court therefor finds the 2nd Respondent, together with the named contemnors, to be in contempt of court. The Appellants’ application is therefore allowed and the following orders do issue:a.A declaration be and is hereby issued that Maar Petroleum Limited, Yusuf Abdi Hussein and Omar Ibrahim Abdi are in contempt of the Orders of this Court having willfully and deliberately disobeyed and defied the Order of this Court of 24th April 2023, by proceeding with the construction works on LR No. 1870/111/71 Westlands Sub-County, Nairobi County.b.The two named contemnors, Yusuf Abdi Hussein and Omar Ibrahim Abdi to mitigate before the sentence is meted out.c.The two named contemnors, Yusuf Abdi Hussein and Omar Ibrahim Abdi, to pay the costs of the application.