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ELCDismissedNotice of Motion dated 3rd April 2018 in a Petition· [2018] KEELC 1934 (KLR)

Bandari Investment Co. Limited v National Police Service & 22 others [2018] KEELC 1934 (KLR)

Environment and Land Court
18 September 2018
AOA. Omollo
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to punish parties for demolishing a wall because the landowner couldn't prove who actually did it.

What this practically means

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Executive summary

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This was a notice of motion dated 3rd April 2018 brought under Order 40 rules 3 & 4 of the Civil Procedure Rules within an ongoing petition, seeking orders that the County Commissioner Mombasa, the OCPD Kisauni and the OCS Kiembeni appear in camera to explain the demolition of a partially constructed wall on plot LR Sub-Division No. 817 between 21st and 24th March 2018, that those officers be made personally liable for implementation of court orders, and that the 6th, 12th, 20th, 21st and 23rd Respondents be punished for contempt by detention pending hearing of a related motion. The court found that the existence of the orders of 19.12.2017 and 21.3.2018, the construction of the wall, and its demolition were not disputed; the sole issue was identification of those responsible. Applying the criminal standard of proof for contempt, the court held that liability could not be inferred merely from the named respondents' control or occupation of the suit premises, that the burden of proof had not shifted to them, and that the pleadings did not allege that the three arrested persons acted as agents of the respondents. The contempt application was therefore declined, with a warning against future obstruction, and each party was ordered to bear its own costs of the application.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The standard is higher than balance of probabilities; the alleged contempt must be proved beyond reasonable doubt

Reasoning

Because contempt can result in imprisonment and deprivation of liberty, the law sets the standard of proof above that of balance of probabilities. The Court of Appeal in Mate v Wambora required satisfaction beyond any shadow of doubt that the person committed the act with full knowledge or notice of the order, a standard traced to Ex parte Langley (1879).

p. 2
02

Whether contempt can be inferred from control of the suit property

Holding

Criminal liability for contempt cannot be inferred merely from a party's presence on or control of the suit land; the burden of proof does not shift

Reasoning

The petitioner admitted it could not identify those who demolished the wall and sought to infer guilt from the respondents' control of the premises. The court held the burden did not shift to the respondents, and since the pleadings did not suggest the three arrested persons acted for or as agents of the named respondents, contempt could not be imputed to them.

p. 2

Legal principles established

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  • Contempt of court carries a criminal standard of proof beyond reasonable doubt because the punishment may involve deprivation of liberty
  • The court must be satisfied beyond any shadow of doubt that the person alleged to be in contempt committed the act with full knowledge of the order forbidding it

Court orders

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  1. 1.Prayer 2 of the motion noted as resolved by the filing of the replying affidavit of Sangura Musee
  2. 2.Prayer 3 not revised as the application was not brought to amend the orders of 19.12.17 and 21.3.18
  3. 3.Refusal to find the named Respondents responsible for the demolition of the wall in contravention of the court order
  4. 4.Warning to the named Respondents against future obstruction of justice and denial of access to the property
  5. 5.Each party to bear their respective costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 3 & 4

Cases cited (5)

  • Kasturilal Lapya vs Mityana Staple Cotton & Another
    (1958) E.A 194
  • Justus Kariuki Mate vs Martin Wambora
    (2014) eKLR
  • Ex parte Langley
    1879, 13 Ch. D 110 (CA)
  • Shimmers Plaza Ltd vs NBK Ltd
    (2015) eKLR
  • Refrigeration & Kitchen Utensils Ltd vs Gulabchand Popatlal Shah & Another
    Court of Appeal No 39 of 1990
Jurisdiction invoked
Order 40 rules 3 & 4 of the Civil Procedure Rules (contempt in aid of subsisting court orders)

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, "Bandari Investment Co. Limited v National Police Service & 22 others [2018] KEELC 1934 (KLR)", Case Analysis (2018). Notice of Motion dated 3rd April 2018 in a Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1934/eng@2018-09-18

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