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ELCDismissedMalindi HCCC No. 123 of 2014 (application dated 8th January 2017)· [2018] KEELC 1175 (KLR)

Fresco Bushlands (K) Limited v Warsame Mohamed Issaak & 3 others [2018] KEELC 1175 (KLR)

Environment and Land Court
31 October 2018
1,865 words in judgment
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The bottom line

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A Kenyan landowner failed to hold herders in contempt of court because it could not prove the breach or clearly show where its 95,000 acres began and ended.

What this practically means

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Executive summary

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Fresco Bushlands (K) Limited, lessee of 95,000 acres of LR No. 14248 (Kulalu Ranch) from the Agricultural Development Corporation, moved the Environment and Land Court at Malindi by Amended Notice of Motion dated 8th January 2017 seeking that the 1st to 4th Defendants be summoned, declared contemnors and committed to civil jail for six months for disobeying consent orders made by Angote J on 7th November 2016 restraining them from evicting the Plaintiff's agents, demolishing structures or interfering with the Plaintiff's rights on the leased land. The Plaintiff alleged the Respondents entered the property, forcefully evicted agents, vandalised and burnt property, and grazed livestock thereon. The Respondents, through a Replying Affidavit of the 3rd Defendant, denied breach, contended the application was ill-conceived and an abuse of process, noted pending appeal, and asserted they held their own grazing rights from the Agricultural Development Corporation over portions of the same ranch. Olola J restated the four elements of civil contempt and the heightened standard of proof from Mutitika v Baharini Farm Ltd (1985) KLR 229. He found the boundaries of the leased 95,000 acres had never been clearly delineated, and that no evidence established that the Respondents invaded the property, evicted anyone, destroyed property, or encroached on the Plaintiff's portion. The application was dismissed with costs on 31st October 2018.

Key legal issues

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01

Elements of civil contempt

Holding

The applicant failed to prove all the required elements to the required standard

Reasoning

The court restated the four elements of civil contempt and the heightened standard of proof from Mutitika v Baharini Farm Ltd. Applying these, it found no clear delineation of the leased 95,000 acres and no evidence linking the Respondents to any invasion, eviction or destruction.

p. 3
02

Standard of proof in contempt proceedings

Holding

Proof must be higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Relying on the Court of Appeal decision in Mutitika v Baharini Farm Ltd (1985) KLR 229, the court held that contempt allegations must be proved to a near-criminal standard, which the Plaintiff did not meet.

p. 3
03

Uncertainty of boundaries defeating contempt

Holding

Where the extent of the protected property is not clearly delineated, contempt cannot be established

Reasoning

The court noted the remaining portions of LR No. 14248 were leased to others, including the Respondents, and boundaries were never determined. Absent clear delineation and evidence of encroachment on the Plaintiff's portion, the contempt orders could not issue.

p. 3

Legal principles established

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  • To establish civil contempt an applicant must prove: (a) the terms of the order were clear and unambiguous and binding on the defendant; (b) the defendant had knowledge or proper notice of the terms; (c) the defendant acted in breach; and (d) the conduct was deliberate.
  • 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.The Notice of Motion dated 8th January 2017 is dismissed
  2. 2.The Plaintiff to pay the Defendants' costs of the application

Authorities

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Cases cited (1)

  • Mutitika –vs- Baharini Farm Ltd
    (1985) KLR 229
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (contempt application in HCCC No. 123 of 2014, trespass claim over LR No. 14248, Kilifi)

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 Issaak & 3 others [2018] KEELC 1175 (KLR)", Case Analysis (2018). Malindi HCCC No. 123 of 2014 (application dated 8th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1175/eng@2018-10-31

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