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ELCDismissedNotice of Motion dated 13th November, 2017 (main suit, ELCC Ngong)· [2018] KEELC 1482 (KLR)

Caroline Sabiri Manyange v Njeri Ene Yaile & another [2018] KEELC 1482 (KLR)

Environment and Land Court
4 October 2018
COCHRISTINE OCHIENG
2,250 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail a landowner for contempt because the applicants couldn't prove their case to the near-criminal standard contempt demands.

What this practically means

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Executive summary

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The Defendants' Notice of Motion dated 13th November, 2017, brought under Order 40 rule 3(1) of the Civil Procedure Rules and Section 63(c) and (e) of the Civil Procedure Act, sought committal of the Plaintiff to civil jail and an order restraining her from working on, encroaching on or interfering with the disputed property, alleging she had disobeyed an inhibition order issued on 25th September, 2017 by fencing the land, digging a borehole, tilling and constructing latrines. The Respondent, Caroline Sabiri Manyange, denied contempt, contending that the inhibition order related to parcel KAJIADO/OLCHORO ONYORE/13165, that she was cultivating on the undisputed parcel 13166, that the dispute concerned parcel 20503 only, and that she had acted within the status quo existing at filing, the parties having negotiated that she occupy one acre. She further argued that the Applicants had not attained the standard of proof in contempt proceedings, which is higher than the balance of probabilities. The court framed one issue: whether the Plaintiff was in contempt of the order of 25th September, 2017. Applying the four-element test for civil contempt and the authority in Africa Management Communication International Ltd v Joseph Mathenge Mugo, the court observed that the Applicants had not shown whether the inhibition order was ever registered by the Land Registrar, Kajiado, or that the Respondent interfered with it, and that the power under Order 40 rule 3(1) applies only to disobedience of injunction orders. Finding the allegations unproved to the required standard, the court dismissed the application with costs in the cause and urged the parties to comply with Order 11 and set the suit down for hearing.

Key legal issues

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01

Whether the Plaintiff was in contempt of the inhibition order issued on 25th September, 2017

Holding

No contempt was established; the Applicants failed to meet the heightened standard of proof and did not show the inhibition order was registered or interfered with

Reasoning

The order of 25th September 2017 provided for registration of an inhibition order against parcel 13165 (subdivided into 20503 and 20504) against dealings. The court noted the inhibition registered against the suit land existed because the Plaintiff was already in occupation of part of it. The Applicants did not show whether the inhibition order was actually registered by the Land Registrar, Kajiado, or that the Respondent interfered with it. Further, Order 40 rule 3(1) applies only to breach of injunction orders, and the order in question was an inhibition order, not an injunction. The allegations did not attain the almost-beyond-reasonable-doubt standard.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities and almost beyond reasonable doubt
  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order, binding nature, knowledge or notice, and breach
  • The power under section 63 of the Civil Procedure Act and Order 40 rule 3(1) applies only to disobedience of orders of injunction

Court orders

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  1. 1.Dismissal of the Defendants' Notice of Motion dated 13th November, 2017
  2. 2.Costs in the cause
  3. 3.Parties urged to comply with Order 11 and set the suit down for hearing and determination

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 3(1)
  • Civil Procedure ActSection 63(c) and (e)
  • Contempt of Court ActSection 27(b)
  • Contempt of Court ActSection 28(1)
  • Civil Procedure RulesOrder 11

Cases cited (4)

  • Awadh Vs Marumbu No. 53 of 2004
    eKLR
  • Africa Management Communication International Limited Vs Joseph Mathenge Mugo & Anor
    (2013) eKLR
  • Sam Nyamweya & 3 others V Kenya Premier League Limited & 2 others
    (2015) eKLR
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Order 40 rule 3(1) of the Civil Procedure Rules, Section 63(c) and (e) of the Civil Procedure Act and the Contempt of Court Act (Sections 27(b) and 28(1))

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, "Caroline Sabiri Manyange v Njeri Ene Yaile & another [2018] KEELC 1482 (KLR)", Case Analysis (2018). Notice of Motion dated 13th November, 2017 (main suit, ELCC Ngong). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1482/eng@2018-10-04

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