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ELCDismissedNotice of motion dated 2nd September, 2016 in the main suit (suit number not stated in the judgment)· [2018] KEELC 3613 (KLR)

Zachary Maina Munyua v Nancy Wamuyu Munyua & 4 others [2018] KEELC 3613 (KLR)

Environment and Land Court
5 April 2018
966 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 jail a woman for breaching a land order because the man accusing her didn't bring strong enough evidence.

What this practically means

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Executive summary

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The applicant, Zachary Maina Munyua, moved the court by notice of motion dated 2nd September 2016 seeking, among other orders, a custodial sentence against the 1st respondent, Nancy Wamuyu Munyua, under the Civil Procedure Act Cap 21 until the main suit over land parcel LR No. Magutu/Gathehu/178 was heard and determined. He alleged that she breached status quo orders issued by Wakiaga J on 7th July 2014 by encroaching on the suit parcel, ploughing the access road, discussing matters pending before the court with the Chief of Gathehu Location, and organising a meeting at the Chief's office to discuss the suit, contrary to the sub-judice rule. The 1st respondent opposed the application through grounds of opposition, contending that no court order had been breached and that no wrong had been demonstrated. The court held that contempt proceedings are criminal in nature and that the applicant bore a heavy burden of proving the allegations beyond reasonable doubt, or almost but not exactly beyond reasonable doubt, relying on Sam Nyamweya v Kenya Premier League, the Lufthansa case (quoting Ochino v Okombo), and Peter K. Yego v Pauline Nekesa Kode. Finding that the applicant's allegations were unsubstantiated and that no cogent evidence showed a breach of the 7th July 2014 orders, the court dismissed the application with costs to the 1st respondent on 5th April 2018.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The applicant bore a heavy burden and had to prove contempt beyond reasonable doubt, almost but not exactly beyond reasonable doubt; the applicant failed to discharge this burden

Reasoning

The court held that contempt is criminal in nature and involves potential loss of liberty. It relied on Sam Nyamweya v Kenya Premier League, the Lufthansa case and Peter K. Yego for the standard. On the evidence, the applicant's allegations were unsubstantiated and denied, so the court could not find the 1st respondent in breach of the status quo order.

p. 2
02

Whether contempt of the 7th July 2014 status quo order was proved

Holding

Not proved; the application was dismissed with costs

Reasoning

The court found no cogent evidence capable of demonstrating that the 1st respondent breached the status quo order issued by Wakiaga J on 7th July 2014. The court also noted the applicant had filed numerous applications rather than setting the main suit down for hearing, an allegation made in the grounds of opposition.

p. 2

Legal principles established

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  • Contempt proceedings are criminal in nature and the applicant must prove the allegations beyond reasonable doubt, or to a standard higher than a balance of probabilities

Court orders

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  1. 1.The application is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Civil Procedure ActCap 21, Laws of Kenya

Cases cited (4)

  • Sam Nyamweya & 3 others v Kenya Premier League Limited & 2 Others
    (2015) eKLR
  • Eliud Muturi Mwangi (Practising in the name and style of Muturi & Company Advocates) v LSG Lufthansa Services Europa/Africa GMBH & another
    [2015] eKLR
  • Peter K. Yego & others vs Pauline Nekesa Kode
  • Ochino & Others vs Okombo & Others
    (1989) KLR 165
Jurisdiction invoked
Civil Procedure Act Cap 21, Laws of Kenya (contempt/civil jail provisions)

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, "Zachary Maina Munyua v Nancy Wamuyu Munyua & 4 others [2018] KEELC 3613 (KLR)", Case Analysis (2018). Notice of motion dated 2nd September, 2016 in the main suit (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3613/eng@2018-04-05

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