Charity Mpano Ntiyione v China Communications Construction Company Limited & another [2019] KECA 791 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a landowner's bid to jail quarry company directors for contempt, ruling contempt must be proven almost beyond reasonable doubt.
What this practically means
#Executive summary
#Key legal issues
#Whether an appellate court can grant an injunction where the injunction application remains pending before the trial court
It cannot; the prayer is misconceived because the ruling appealed against neither granted nor denied an injunction
The ruling of 11th December 2017 disposed only of a contempt application. The injunction application was still pending inter partes before the trial court. An appellate court should not determine issues that were not before the court below nor pre-judge matters pending there. The Court therefore rejected the appellant's unusual prayer for an injunction from the appeal itself.
Jurisdiction of the Environment and Land Court in contempt proceedings
The jurisdictional arguments by the 1st respondent were a red herring; the court had jurisdiction to enforce its injunction order through contempt proceedings
The order allegedly violated only prohibited quarrying; it did not require cancellation of the EIAL or a fresh impact assessment, the matters reserved for the National Environment Tribunal and Public Complaints Committee. The judge erred in pronouncing on partial jurisdiction over issues she was not determining. Mutanga Tea applies only where a party aggrieved by NEMA decisions seeks review of those decisions.
Service of the order and penal notice on the directors
Service and knowledge were established by the 1st respondent's own depositions; the judge erred in finding no service
Liu Qitao deposed that the order of 24th October 2016 was duly served and that the company complied with it, and that its advocates advised it of the order and requested compliance. On those express depositions it was not open to the judge to find there had been no service or knowledge of the order.
Proof of contempt
Contempt was not proved; the judge who visited the locus found no breach and the appellate court had no basis to disagree
Contempt is quasi-criminal and requires proof higher than the balance of probabilities, almost but not exactly beyond reasonable doubt. The learned judge visited the suit property and was not satisfied the order was breached; having the advantage of viewing the locus that the appellate court lacks, her finding stands.
Alleged bias of the trial judge
No substance; the grounds were too flimsy to justify recusal
A stranger showing the judge and parties around the property, in the presence of the appellant's advocate, does not establish bias. The objective test is the reasonable apprehension of a fair-minded and informed member of the public, and the grounds raised would not have met it.
Legal principles established
#- Contempt of court, being quasi-criminal, requires a standard of proof higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- The Environment and Land Court has jurisdiction to issue injunctions to protect the right to property and the right to a clean and healthy environment; jurisdictional objections to dedicated forums do not arise where the order sought to be enforced does not raise those issues
- A party that has deposed to being served with a court order and having complied with it cannot later deny service or knowledge; a party cannot be committed for contempt absent proof of deliberate breach of the order
- The test for judicial bias is an objective one premised on the reasonable apprehension of bias in the mind of a reasonable, fair-minded and informed member of the public
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 1st respondent
- 3.Appellant's prayer for an injunction pending hearing of the suit rejected
- On appeal from
- Environment and Land Court at Kajiado
- ELCC No. 253 of 2017
- Jurisdiction invoked
- First appeal against an interlocutory ruling of the Environment and Land Court; jurisdiction under the Court of Appeal's appellate mandate (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Enaso Ene Parisue Malei & another (suing on behalf of the estate of Oltokokoi Merit Katiyu (deceased)) v Joseph Bradley Waweru Gitari and 168 others[2022] KEELC 14764 (KLR)16 Nov 2022applied
- Suleiman Murunga v Nilestar Holdings Limited & 5 others [2019] KEELC 4288 (KLR)[2019] KEELC 4288 (KLR)25 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Charity Mpano Ntiyione v China Communications Construction Company Limited & another [2019] KECA 791 (KLR)", Case Analysis (2019). Civil Appeal No. 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/791/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.