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ELCDismissedNot stated in the judgment· [2016] KEELC 1004 (KLR)

Kipkemboi Kosgei v Samuel Kipkoech & 4 others [2016] KEELC 1004 (KLR)

Environment and Land Court (not expressly named in the judgment)
22 February 2016
AOAntony Ombwayo
1,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A father failed to jail his sons for contempt because the court's 'status quo' order was too vague to prove they had disobeyed it.

What this practically means

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Executive summary

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The plaintiff, registered owner of NANDI/MUTWOT/204 measuring 15.0 hectares, moved the court by Notice of Motion seeking that the defendants, his sons, be committed to civil jail for up to six months and that their property be attached for disobeying a status quo order issued on 28th May 2013 over the suit parcel. He alleged that the defendants had ploughed the disputed land and interfered with its boundary contrary to the order. The 1st defendant, replying on behalf of the 2nd to 5th defendants, denied breach, asserting that each had cultivated only one acre of the 12 acres the plaintiff set aside, and that it was the plaintiff who leased 10 acres to a stranger, Celestin Koech, who insisted on ploughing the full 10 acres. After the District Officer, Mosoriot, intervened, the lessee agreed to cultivate only 7 acres, leaving the defendants 3 acres. The defendants characterised the application as vindictive, arising from the lessee's claim for a refund. The court held that contempt had not been proved: the status quo order was general and not specific as to prohibited acts; the defendants might hold beneficial interests ascertainable only at trial; and the applicable standard of proof in contempt - slightly above balance of probabilities but below beyond reasonable doubt - was not met, the plaintiff having failed to rebut the replying affidavit. The application was dismissed with no order as to costs, given the familial relationship between the parties.

Key legal issues

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01

Whether the defendants were in contempt of the status quo order of 28th May 2013

Holding

The application was dismissed; contempt was not proved

Reasoning

The court held that the status quo order was general rather than specific, so the alleged ploughing could not be shown to contravene it. The defendants claimed a beneficial interest and asserted it was the plaintiff who had leased 10 acres to a third party, Celestin Koech, forcing the reduction of their cultivation. The plaintiff did not rebut the replying affidavit with facts, so the breach was not demonstrated to the requisite standard.

p. 2

Legal principles established

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  • The standard of proof in contempt proceedings is above the balance of probabilities but below proof beyond reasonable doubt
  • A contempt application fails where the underlying order is general and does not specify the acts prohibited

Court orders

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  1. 1.The plaintiff's Notice of Motion seeking committal of the defendants to civil jail and attachment of their property is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
The court's inherent jurisdiction to punish contempt of its orders (not stated by reference to a specific provision in the judgment)

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, "Kipkemboi Kosgei v Samuel Kipkoech & 4 others [2016] KEELC 1004 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1004/eng@2016-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.