Fresco Bushlands (K) Limited v Warsame Mohamed Isaak & 4 others [2015] KEELC 208 (KLR)
The bottom line
#A Kenyan landowner failed to jail graziers for contempt because the 95,000 leased acres were never demarcated, proving contempt demands near-criminal certainty.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof in contempt proceedings
Contempt must be proved to a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt; the Plaintiff failed to meet it
The court applied Mutitika v Baharini Farm Ltd. Because the 95,000 acres leased to the Plaintiff had never been demarcated or identified, the court could not find with certainty that the Defendants encroached on it. Without certainty as to the extent of the leased land, contempt could not be established and committal was refused.
Whether disobedience of the order of 9th March 2015 was proved
No - the boundary of the 95,000 acres was not established, so breach could not be ascertained
The order of 9th March 2015 required the Defendants to move out of the 95,000 acres and ADC to lead identification of the boundaries. ADC deponed that the land was never demarcated and the extent of the leased acreage was never agreed with the Plaintiff. In the absence of demarcation the court could not find with certainty that the Defendants encroached on land leased to the Plaintiff.
Repeated contempt applications without new evidence
A second contempt application fails where nothing has changed since the first was dismissed
The Plaintiff had already sought similar orders in an application dated 9th February 2015 which was dismissed on 24th April 2015 because the Defendants had not been shown the extent of the 95,000 acres. Counsel for the Plaintiff could not show what had changed since that ruling, and the court could not confirm whether its orders calling on ADC to identify the land had been complied with.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
Court orders
#- 1.Dismissal of the Application dated 3rd September 2015 with no order as to costs
- Jurisdiction invoked
- Inherent contempt jurisdiction of the court over disobedience of its orders of 9th March 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresco Bushlands (K) Limited v Warsame Mohamed Isaak & 4 others [2015] KEELC 208 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/208/eng@2015-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.