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Court of AppealDismissedCivil Appeal No. 31 of 2018· [2019] KECA 791 (KLR)

Charity Mpano Ntiyione v China Communications Construction Company Limited & another [2019] KECA 791 (KLR)

Court of Appeal of Kenya
22 March 2019
3,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, owner of land adjoining a quarry operated by the 1st respondent, had obtained an ex parte temporary injunction restraining quarrying and then applied to commit three of the 1st respondent's directors to jail for contempt. The Environment and Land Court at Kajiado (C. Ochieng, J.) dismissed the committal application, holding that the order was ex parte and unserved on the directors, that no breach was proved, and that some issues in the suit belonged to dedicated forums. On appeal, the Court of Appeal rejected the appellant's unusual prayer for an injunction because the injunction application remained pending before the trial court. On jurisdiction, the Court held the judge erred: the order allegedly violated only prohibited quarrying, so the Tribunal/Committee jurisdiction arguments were a red herring; the Environment and Land Court clearly has jurisdiction to enforce its orders and protect rights to property and a clean environment. On service, the Court found the judge erred in holding there was no service, since the 1st respondent's MD had deposed that the order was served and complied with. However, on the central question of contempt, the Court affirmed the judge's finding of no breach: contempt being quasi-criminal requires proof almost beyond reasonable doubt, and the judge, who visited the locus, was not satisfied of a violation. The bias allegations were dismissed as flimsy. The appeal was dismissed with costs to the 1st respondent, affirming the decision below on outcome though correcting parts of its reasoning.

Key legal issues

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01

Whether an appellate court can grant an injunction where the injunction application remains pending before the trial court

Holding

It cannot; the prayer is misconceived because the ruling appealed against neither granted nor denied an injunction

Reasoning

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.

p. 3
02

Jurisdiction of the Environment and Land Court in contempt proceedings

Holding

The jurisdictional arguments by the 1st respondent were a red herring; the court had jurisdiction to enforce its injunction order through contempt proceedings

Reasoning

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.

p. 3
03

Service of the order and penal notice on the directors

Holding

Service and knowledge were established by the 1st respondent's own depositions; the judge erred in finding no service

Reasoning

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.

p. 3
04

Proof of contempt

Holding

Contempt was not proved; the judge who visited the locus found no breach and the appellate court had no basis to disagree

Reasoning

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.

p. 3
05

Alleged bias of the trial judge

Holding

No substance; the grounds were too flimsy to justify recusal

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the 1st respondent
  3. 3.Appellant's prayer for an injunction pending hearing of the suit rejected

Authorities

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Legislation

  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 70
  • Constitution of KenyaArticle 40
  • Environment and Land Court Actsection 13(2)
  • Environment and Land Court Actsection 13(3)
  • Environment Management and Coordination Actsection 3

Cases cited (16)

  • Seven Seas Technologies Ltd v. Eric Chege
    [2014] eKLR
  • Taib Investments Ltd v. Fahim Salim Said
    [2016] eKLR
  • Shimmers Plaza Ltd v. National Bank of Kenya
    [2015] eKLR
  • Mutanga Tea & Coffee Company Ltd v. Shikara Ltd & Another
    [2015] eKLR
  • Republic v. National Environmental Management Authority
    [2011] eKLR
  • Patrick Musimba v. National Land Commission & 4 Others
    [2016] eKLR
  • Sam Nyamweya & 3 Others v. Kenya Premier League Ltd & 2 Others
    [2015] eKLR
  • Kariuki & 2 Others v. Minister for Gender, Sports, Culture & Social Services & 2 Others
    [2004] eKLR
  • Mike Maina Kamau v. Hon Frankline Bett & 6 Others
    [2012] eKLR
  • Payless Car Hire & Tours Ltd v. Imperial Bank Ltd
    [2012] eKLR
  • Nyangau v. Nyakwara
    [1985] eKLR
  • Stephen Wang'an'a Njoroge v. Stanley Ngugi Njoroge & Another
    [2017] eKLR
  • Niazsons (K) Ltd v. China Road & Bridge Corporation Kenya
    [2001] KLR 12
  • Mutitika v. Baharini Farm
    [1982-88] 1 KLR
  • Attorney General of Kenya v. Prof. Anyang Nyong'o & 10 Others
    EACJ App. No. 5 of 2007
  • Kalpana H. Rawal v. Judicial Service Commission & 2 Others
    [2015] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.