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ELCDismissed· [2015] KEELC 208 (KLR)

Fresco Bushlands (K) Limited v Warsame Mohamed Isaak & 4 others [2015] KEELC 208 (KLR)

Environment and Land Court
2 October 2015
920 words in judgment
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The bottom line

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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

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Executive summary

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The Plaintiff applied on 3rd September 2015 for the 1st to 4th Defendants to be summoned and committed to civil jail for six months for disobeying the court order of 9th March 2015, which required the Defendants to move out of 95,000 acres leased to the Plaintiff, with ADC to lead identification of the 1,000 acres for the Defendants. The Plaintiff alleged the Defendants' servants invaded the suit property, grazed livestock, harassed agents and abducted one of its agents. The 3rd Defendant denied disobeying the orders, asserting they operated within their lease and that demarcation had not been done and boundaries not established by ADC. The court noted this was the Plaintiff's second contempt application; an earlier application dated 9th February 2015 had been dismissed on 24th April 2015 because there was no evidence the Defendants had been furnished with documents showing the extent of the 95,000 acres. Counsel for the Plaintiff could not show what had changed since then, and the court was not told whether its order requiring ADC to identify the land had been complied with. Applying Mutitika v Baharini Farm Limited, the court held that contempt must be proved to a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt. Since the 95,000 acres had never been identified or demarcated, the court could not find with certainty that the Defendants encroached on land leased to the Plaintiff. The application dated 3rd September 2015 was dismissed with no order as to costs, with an observation that unwillingness by ADC to identify the 95,000 acres could ground a separate cause of action.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

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

Reasoning

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.

p. 3
02

Whether disobedience of the order of 9th March 2015 was proved

Holding

No - the boundary of the 95,000 acres was not established, so breach could not be ascertained

Reasoning

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.

p. 2
03

Repeated contempt applications without new evidence

Holding

A second contempt application fails where nothing has changed since the first was dismissed

Reasoning

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.

p. 2

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.Dismissal of the Application dated 3rd September 2015 with no order as to costs

Authorities

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Cases cited (1)

  • Mutitika Vs Baharini Farm Limited
    (1985) KLR 229
Jurisdiction invoked
Inherent contempt jurisdiction of the court over disobedience of its orders of 9th March 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.