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ELCDismissedNot stated in excerpt· [2016] KEELC 1005 (KLR)

Jane Barno & 6 others v Catholic Diocese of Eldoret Trustees Registered & another [2016] KEELC 1005 (KLR)

Environment and Land Court
26 February 2016
AOAntony Ombwayo
1,941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a contempt application because the Diocese could not prove its accusations, showing contempt claims in Kenya need solid evidence, not just allegations.

What this practically means

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Executive summary

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The 1st defendant, the Catholic Diocese of Eldoret Trustees Registered, sued by Notice of Motion dated 26 May 2015 for orders that the plaintiffs be arrested and committed to civil jail for contempt of orders issued on 20 November 2013 and extended on 21 February 2014, that the fence they erected on parcel Baringo/Mumberes/455 be pulled down, that barriers blocking access to the parish house, cow shed and locked classroom be removed, and that the interim committee running the school be barred in favour of a Board appointed by the Ministry of Education. The applicant, through the affidavit of Bishop Cornelius Korir, alleged that the plaintiffs cultivated the land, sprayed chemicals, barricaded access, leased part of the land and continued running the school without a proper board, disregarding the Church's sponsorship. The plaintiffs, through Jacob Kipsui, replied that the orders of 20.11.2013 and 21.2.2014 were issued against the defendants, not the plaintiffs; that photographs showed the gate was not barricaded and crops not destroyed; that the applicant's cows repeatedly trespassed onto the school land; and that the application raised issues only triable at the main suit. The court construed the 20.11.2013 injunction against the defendants and the 19.12.2013 restraint against the plaintiffs as requiring both parties to keep off the property. Holding that contempt must be proved to a standard above balance of probabilities but below beyond reasonable doubt, and that the allegations were alleged but not proved, the court dismissed the application with costs, declined to determine school management before full hearing, and enjoined the Attorney General as interested party for the Ministry of Education. Delivered at Eldoret on 26 February 2016 by Antony Ombwayo J.

Key legal issues

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01

Whether contempt of court orders was proved

Holding

The applicant failed to discharge the burden of proving contempt to the required standard

Reasoning

The court reviewed the three orders (20.11.2013 injunction against defendants; 19.12.2013 restraint against plaintiffs; 21.2.2014 extension of both) and held both parties should keep off the property. The specific allegations — leasing, cultivation, spraying, barricading — were alleged but not proved by evidence, despite it being easy for the applicant to adduce such evidence.

p. 3
02

Whether the school management dispute could be resolved at the interlocutory stage

Holding

No; the issue can only be determined after a full hearing, and no interim orders governed school management

Reasoning

The court found the preliminary documents indicated the school is owned by the Government of Kenya, and enjoined the Attorney General as interested party, but declined to make findings on the legality of the interim committee before trial.

p. 3
03

Effect of the two conflicting interim orders

Holding

Properly construed, both orders required both parties to keep off the suit property until determination of the suit

Reasoning

The 20.11.2013 order restrained the defendants and the 19.12.2013 order restrained the plaintiffs; the 21.2.2014 order extended both. Neither had been set aside, so both remained in force.

p. 3

Legal principles established

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  • In contempt proceedings the burden of proof lies on the party alleging contempt
  • The standard of proof in contempt is above balance of probabilities but below beyond reasonable doubt

Court orders

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  1. 1.Application dated 26.5.2015 dismissed with costs
  2. 2.Attorney General enjoined as an interested party on behalf of the Ministry of Education
Jurisdiction invoked
Inherent powers of the court to punish contempt of its orders (interlocutory application in pending land suit)

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, "Jane Barno & 6 others v Catholic Diocese of Eldoret Trustees Registered & another [2016] KEELC 1005 (KLR)", Case Analysis (2016). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1005/eng@2016-02-26

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