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ELCDismissedNotice of Motion dated 16th March 2016 in suit filed 20th June 2014· [2017] KEELC 3112 (KLR)

William Karomo Murundu v Amos Nganga Kariuki [2017] KEELC 3112 (KLR)

Environment and Land Court
31 March 2017
SOS. Okong'o
1,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nairobi dismissed a contempt claim because the order was never served and the disobedience was not proven.

What this practically means

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Executive summary

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The dispute concerns the boundaries of LR No. Githunguri/Ikinu/1402 (the Defendant's father's parcel) and LR No. Githunguri/Ikinu/1403 (the Plaintiff's parcel). In 2007 the Plaintiff obtained an award from the Githunguri Land Disputes Tribunal directing a boundary marking, which was adopted as a judgment of the Senior Resident Magistrate's Court at Githunguri and a decree issued in February 2008. The District Surveyor marked the boundaries, but further boundary disputes followed, and in August 2013 the magistrates' court held it was functus officio on boundary matters. In June 2014 the Plaintiff filed suit seeking a permanent injunction and obtained, ex parte and unopposed, an interim injunction on 8th July 2014 restraining the Defendant from entering Plot No. 1403, quarrying or cutting trees. The present application by Notice of Motion dated 16th March 2016 sought the Defendant's committal to jail for up to six months and a fine of Kshs.500,000 for contempt of that order. The Defendant opposed through a preliminary objection on res judicata and a replying affidavit denying disobedience, contending he had never encroached since the boundaries were marked. The court held that contempt, being quasi-criminal, must be proved to a standard higher than a balance of probabilities, applying Mutitika v Baharini Farm Ltd. The Plaintiff produced no evidence of service of the order or of the Defendant's knowledge of it, and no proof that quarrying, tree-cutting or coffee-bush cutting occurred on Plot No. 1403. The court rejected the res judicata objection but censured the Plaintiff's failure to disclose prior proceedings. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The standard is higher than a balance of probabilities; it was not met

Reasoning

Committal may deprive a person of liberty, making the proceedings quasi-criminal. The court relied on Mutitika v Baharini Farm Ltd and held the Plaintiff failed to satisfy the elevated standard on the material before it.

p. 3
02

Service/knowledge of the order and proof of disobedience

Holding

Plaintiff adduced no evidence of service of the 8th July 2014 order or of the Defendant's knowledge, nor proof of the prohibited acts on Plot No. 1403

Reasoning

Photographs of two felled trees did not establish when, by whom, or on which parcel the acts occurred. The Plaintiff produced no evidence that quarrying or cutting of coffee bushes took place on Plot No. 1403 across the beacons placed by the District Surveyor.

p. 3
03

Res judicata preliminary objection

Holding

Rejected - the court did not agree the suit was res judicata, but criticised the Plaintiff's non-disclosure of prior proceedings

Reasoning

The Defendant argued the tribunal award adopted as judgment on 20th December 2007 concluded the boundary dispute. The court declined to uphold the objection but noted the Plaintiff's duty to disclose prior proceedings over the same subject matter.

p. 4

Legal principles established

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  • Committal proceedings are quasi-criminal and the standard of proof of contempt is higher than a balance of probabilities
  • A party seeking contempt findings must establish service of the order or the contemnor's knowledge of it, and prove the acts of disobedience

Court orders

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  1. 1.The Notice of Motion dated 16th March 2016 is dismissed with costs to the Defendant

Authorities

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Cases cited (1)

  • Mutitika-vs-Baharini Farm Ltd
    (1985) KLR 227
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (not expressly stated 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, "William Karomo Murundu v Amos Nganga Kariuki [2017] KEELC 3112 (KLR)", Case Analysis (2017). Notice of Motion dated 16th March 2016 in suit filed 20th June 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3112/eng@2017-03-31

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