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ELCPartially AllowedNotice of Motion dated 4th May 2017 (filed in the principal suit; case number not stated in the judgment)· [2018] KEELC 3875 (KLR)

Ngamau Kiburu Ngamau v Philip Mburu Njenga & 3 others [2018] KEELC 3875 (KLR)

Environment and Land Court
8 March 2018
SOS. Okong'o
1,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court found four defendants guilty of disobeying an injunction protecting Nairobi land, but will hear their side before deciding punishment.

What this practically means

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Executive summary

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The plaintiff brought a Notice of Motion dated 4th May 2017 seeking a finding that the four defendants were in contempt of injunctive orders issued on 2nd December 2016 (and earlier granted on 28th November 2016) restraining them from interfering with his quiet enjoyment of Nairobi/Block 126/461, together with orders for their arrest and committal to jail, a direction to the OCS Kamulu police station to ensure compliance and protection, and costs. The applicant alleged the respondents pulled down his perimeter fence, hired goons to bar his access, and undertook construction on the suit property despite personal service of the order together with a penal notice, as evidenced by an affidavit of service and photographs. The application was unopposed: the respondents filed no response, and their advocate relied on the applicant's affidavit, urging the court to allow the application. The court restated the definition of contempt and the elements for civil contempt - proof of the terms of the order, knowledge, and non-compliance - and the standard of proof, which lies above a balance of probabilities but below beyond reasonable doubt. Noting that the burden remained on the applicant even in an unopposed application, the court found that photographs showed construction commenced after the injunction and that the respondents did not deny undertaking it. The court held the respondents guilty of contempt with full knowledge of the order. However, rather than committing them to jail forthwith, the court directed that the respondents be summoned to appear for mitigation before sentence is decided, and awarded the applicant the costs of the application.

Key legal issues

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01

Whether contempt was proved to the required standard despite the application being unopposed

Holding

Yes; even though the application was unopposed, the burden remained on the applicant and was discharged on the evidence

Reasoning

The court held the applicant's photographs showed no structures existed when the suit and injunction application were filed, but construction commenced between 28th November 2016 and 8th May 2017, after the injunctive order. The respondents did not deny undertaking the construction. Terms, knowledge and non-compliance were undisputed, and the standard (above balance of probabilities, below reasonable doubt) was met.

p. 3
02

Whether the respondents should be committed to jail forthwith

Holding

No; committal was deferred to allow mitigation

Reasoning

Given the nature of contempt proceedings, the court considered it necessary to give the contemnors an opportunity to address the court in mitigation before deciding the appropriate sentence, and summoned them to appear on a date to be fixed.

p. 3

Legal principles established

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  • To succeed in civil contempt proceedings, the applicant must prove the terms of the order, the respondent's knowledge of those terms, and failure by the respondent to comply
  • The standard of proof of contempt of court is higher than a balance of probabilities but below beyond reasonable doubt
  • Every person against whom a court order is made has a plain and unqualified obligation to obey it unless and until it is discharged

Court orders

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  1. 1.A finding and holding that the respondents Philip Mburu Njenga, Bernadette Njoki Kamau, Virginia Wambui Ngamau and John Nganga Kibebe are guilty of contempt of the court orders issued on 2nd December 2016
  2. 2.The respondents are summoned to appear before the court on a date to be fixed to mitigate before sentence is decided
  3. 3.The applicant is awarded the costs of the application

Authorities

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Cases cited (5)

  • Kenya Tea Growers Association vs. Francis Atwoli and 5 others
    [2012] eKLR
  • Clarke and others vs. Chadburn & others
    [1985] 1 ALL E.R (pc), 211
  • Katsuri Limited vs. Kapurchand Depar Shah
    (2016) eKLR
  • Mutitika vs. Baharini Farm Ltd.
    (1985) LKR 227
  • Hadkison vs. Hadkinson
    (1952) ALLER 567
Jurisdiction invoked
Inherent jurisdiction of the High Court/Environment and Land Court to punish contempt of court orders issued by it

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, "Ngamau Kiburu Ngamau v Philip Mburu Njenga & 3 others [2018] KEELC 3875 (KLR)", Case Analysis (2018). Notice of Motion dated 4th May 2017 (filed in the principal suit; case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3875/eng@2018-03-08

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