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ELCDismissedPMCC Appeal (Kajiado) - application within appeal from PMCC No. 323 of 2010· [2018] KEELC 2074 (KLR)

John Muthusi Mweke v Mosoi P Parkut [2018] KEELC 2074 (KLR)

High Court of Kenya
30 July 2018
COChristine Ochieng
1,441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a contempt application because the applicant gave vague, undated allegations instead of specific proof the court order was breached.

What this practically means

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Executive summary

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This was a contempt-of-court application by the Appellant in an appeal pending before the High Court at Kajiado, arising from a suit dismissed by the Principal Magistrate's Court in PMCC No. 323 of 2010. The Appellant sought committal of the Respondent, Mosoi P. Parkut, to prison for six months for allegedly disobeying consent orders recorded on 15th March 2016, which granted injunctive orders restraining the Respondent and his agents from interfering with the Appellants' quiet possession, occupation and enjoyment of a 38-acre portion of land parcel Kajiado/Kaputiei Central/677, pending the hearing of the appeal. The Appellant asserted that despite personal service of the extracted order, the Respondent harvested soil, blocked access to the land and harassed and trespassed on the Appellants' portion. The Respondent denied the allegations, contending that the claims were wild, unsubstantiated and unspecified as to dates, and that contempt being criminal in nature required proof by cogent evidence. The court framed a single issue: whether the Respondent was in contempt of the order of 15th March 2016. It found the existence, service and the Respondent's knowledge of the order undisputed, but held that the Appellant had failed to specify the dates, period or portion of land involved in the alleged acts, and that the Respondent still owned the land and was restrained from interfering with only a portion of it. Relying on Section 29 of the Contempt of Court Act and the four elements of civil contempt set out in North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi, the court found no evidence of contempt and dismissed the application, directing the Appellant to set the appeal down for hearing.

Key legal issues

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01

Whether the Respondent was in contempt of the consent order of 15th March, 2016

Holding

No - the Appellant failed to discharge the burden of proving contempt to the required standard

Reasoning

Although the existence, service and the Respondent's awareness of the consent order were undisputed, the Appellant's affidavit did not specify the dates or the period over which the alleged contempt occurred, nor which portion of the land was interfered with. The Respondent remained owner of the land and was only restrained from interfering with a portion of it. Applying Section 29 of the Contempt of Court Act and the four elements from North Tetu Farmers, the Appellant failed to prove deliberate breach to the criminal standard.

p. 2

Legal principles established

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  • To establish civil contempt, the applicant must prove four elements to the requisite (higher than civil) standard: clear and unambiguous terms of the order binding on the defendant; knowledge or proper notice; breach; and deliberate conduct
  • Contempt proceedings are criminal in nature and the burden of proof lies on the applicant alleging the contempt

Court orders

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  1. 1.The Notice of Motion application dated 15th March, 2017 is disallowed and dismissed
  2. 2.The Appellant to set the Appeal down for hearing to enable the Court make a final determination of the said Appeal

Authorities

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Legislation

  • Judicature ActSection 5
  • Rules of the Supreme Court of EnglandOrder 52 rule 2(2)
  • Civil Procedure ActSections 1, 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40 rule 4
  • Contempt of Court ActSection 27(b)
  • Contempt of Court ActSection 28(1)
  • Contempt of Court ActSection 29(1)

Cases cited (1)

  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
On appeal from
Principal Magistrate's Court
PMCC No. 323 of 2010
Jurisdiction invoked
Section 5 of the Judicature Act; Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 40 rule 4 of the Civil Procedure Rules

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, "John Muthusi Mweke v Mosoi P Parkut [2018] KEELC 2074 (KLR)", Case Analysis (2018). PMCC Appeal (Kajiado) - application within appeal from PMCC No. 323 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2074/eng@2018-07-30

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