Isaac Chebon & 3 others v County Government of Baringo [2018] KEELC 2193 (KLR)
The bottom line
#The court refused to jail Baringo County officials for ignoring orders because the plaintiffs failed to prove, with strong evidence, that the officials knowingly breached them.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to punish contempt
The court has jurisdiction, as the Contempt of Court Act extends to courts established under Article 162(1), including the Environment and Land Court
The Act defines superior courts by reference to Article 162(1) of the Constitution and expressly includes the Environment and Land Court, so this Court is empowered to punish contempt and uphold the dignity and authority of the court.
Whether personal service of the injunction orders was proved
Personal service was not proved; no affidavit of service was filed and the applicant failed to discharge the burden of proof
The applicant did not attach an affidavit of service to show the alleged contemnors were personally served. Without it the court cannot resolve the conflict between the parties' accounts, and the higher, quasi-criminal standard of proof applicable in contempt was not met.
Whether knowledge of the order without personal service suffices
Knowledge supersedes personal service, and the letter to the contractor showed the respondent had knowledge of the order; but knowledge alone, without proof of deliberate breach to the required standard, does not establish contempt
The court accepted (following Basil Criticos) that knowledge supersedes personal service, and found the respondent's letter showed good intention of obeying the order and knowledge of it. However, the applicant still had to prove a deliberate breach beyond the elevated standard, which was not attained.
Standard of proof in contempt proceedings
The standard is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, and it was not met
Relying on Mutitika v Baharini Farm Ltd, the court applied the quasi-criminal standard of proof in contempt and enjoined courts to exercise restraint where the threshold is not attained, dismissing the application for failure to meet it.
Legal principles established
#- The applicant in civil contempt proceedings must prove, to a standard higher than balance of probabilities (almost but not exactly beyond reasonable doubt), that the order's terms were clear and unambiguous, that the defendant had knowledge or proper notice, that there was breach, and that the breach was deliberate
- Knowledge of a court order supersedes the strict requirement of personal service where a party clearly acts in a manner showing awareness of the order
- An applicant alleging contempt must file an affidavit of service where personal service is asserted and denied
Court orders
#- 1.Dismissal of the application dated 11th January 2018 with no orders as to costs
- Jurisdiction invoked
- Contempt of Court Act No. 46 of 2016, defining superior courts by reference to Article 162(1) of the Constitution, including the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Chebon & 3 others v County Government of Baringo [2018] KEELC 2193 (KLR)", Case Analysis (2018). Notice of Motion dated 11th January 2018 (ELC Suit, cattle dip on plot BARINGO/KEWAMOI "B"/856). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2193/eng@2018-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.