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ELCDismissedNotice of Motion dated 21.10.2015 (in a Petition)· [2017] KEELC 1539 (KLR)

Wilson K. Kwambai & another v Director of Surveys & 4 others [2017] KEELC 1539 (KLR)

Environment and Land Court
17 August 2017
AOA. Ombwayo
890 words in judgment
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The bottom line

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The Eldoret Environment and Land Court refused to jail alleged contemnors because the applicants could not prove they personally knew of the court order.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Eldoret by Notice of Motion dated 21.10.2015 seeking committal of Joseph Keroney and Irene Magut to two years' imprisonment and a fine of Kshs. 20,000,000 for contempt of interim orders of 23.9.2015 directing that status quo be maintained on land parcel L.R. No. 4491 (177.53 Ha). The applicants alleged that despite service of the order on the 2nd respondent's legal office on 9.10.2015, the alleged contemnors broke ground, graded a 12-metre road of about 2.8 kilometres across the parcel and damaged the perimeter fence. The alleged contemnors denied service, Irene Magut stating she was not served and the County Secretary, Peter Leley, confirming service was not effected. The court held that contempt is a quasi-criminal charge requiring proof of knowledge of the court order, and that the standard of proof is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt. Relying on Basil Criticos v Attorney General, Mutitika v Baharini Farm, Hadkinson v Hadkinson and Johnson v Walton, the court reaffirmed that court orders must be obeyed until discharged but found no evidence that either alleged contemnor was personally served or aware of the order; knowledge could not be imputed merely because superiors may have known. The applicants having failed to discharge their burden, the contempt application was dismissed with costs on 17 August 2017 (A. Ombwayo, J).

Key legal issues

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01

Whether knowledge of a court order was proved against the alleged contemnors

Holding

No evidence that Joseph Keroney or Irene Magut were personally served or aware of the order; service on the legal officer did not establish their knowledge

Reasoning

The court found an order of status quo was made on 23.9.2015, but the applicants did not prove personal service on the contemnors. Contempt being quasi-criminal, evidence of the contemnor's knowledge of the order is indispensable. The possibility that superiors knew of the order but did not relay it to the contemnors meant knowledge could not be imputed to them, so the burden of proof was not discharged.

p. 2
02

Standard of proof in contempt proceedings

Holding

Higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Because contempt is akin to a criminal offence and a party may lose their liberty, the standard of proof is elevated. The court adopted the settled position in Mutitika v Baharini Farm and the obligation-to-obey authorities, requiring proof of knowledge of the order before committal.

p. 2

Legal principles established

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  • The standard of proof in contempt is higher than balance of probabilities, almost but not exactly beyond reasonable doubt
  • Knowledge of a court order may supersede the requirement of personal service
  • An order of a competent court must be obeyed until discharged, even if believed irregular or void

Court orders

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  1. 1.The application for contempt dismissed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Environment and Land Court Actnot specified

Cases cited (4)

  • Basil Criticos Vs Attorney General and 8 Others
    [2012] eKLR
  • Mutitika Vs Baharini Farm Limited
    [1985] KLR 229
  • Hadkinson -v- Hadkinson
    (1952) P 285 at 288
  • Johnson –v- Walton
    (1990) 1 FLR 350 at 352
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2011 (power to penalize contempt of court)

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, "Wilson K. Kwambai & another v Director of Surveys & 4 others [2017] KEELC 1539 (KLR)", Case Analysis (2017). Notice of Motion dated 21.10.2015 (in a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1539/eng@2017-08-17

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