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ELCDismissedELC Case No.335 of 2011 (Notice of Motion dated 3rd May, 2017)· [2018] KEELC 4389 (KLR)

Mohamed Abdalla Masaza v Mohamed Abdalla Gosi & 2 others [2018] KEELC 4389 (KLR)

Environment and Land Court
26 February 2018
CYC. Yano
1,270 words in judgment
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The bottom line

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The court refused to jail a landowner for disobeying orders because the applicant couldn't prove when the alleged construction happened.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (C. Yano, J) on a Notice of Motion dated 3rd May 2017 brought by the Plaintiff under Order 40 Rules 3 and 4 of the Civil Procedure Rules. The Plaintiff sought enforcement of ex-parte orders issued on 9th March 2017 restraining the 1st Defendant from trespassing on and constructing on the suit property, Kwale/Ng'ombeni/2390, together with committal of the 1st Defendant to civil jail for six months for contempt. The Plaintiff alleged that after service of the order the 1st Defendant continued building, nearly completing a permanent structure. The 1st Defendant, in a Replying Affidavit, admitted service but denied disobedience, stating he discontinued all construction and had lived on the land, his ancestral/customary land, for over fifty years. He further accused the Plaintiff of disobeying orders in related litigation, including Kwale SRMCC No.305 of 2008. The court restated the settled standard of proof in contempt - higher than a balance of probabilities but not exactly beyond reasonable doubt, since contempt is criminal in character and liberty is at stake - and held it must be satisfied beyond any shadow of a doubt. Examining photographs exhibited by both sides, the court found it impossible to determine when the structures were erected, and noted the Plaintiff had not raised the alleged continuing construction when the matter was in court on 12th April 2017, casting doubt on his allegations. Finding contempt not proved, the court dismissed the Notice of Motion with costs to the 1st Defendant on 26th February 2018.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

Higher than balance of probabilities but short of beyond reasonable doubt; the court must be satisfied beyond any shadow of a doubt

Reasoning

The court applied settled authority (Mutika v Baharin Farm Ltd; Refrigerator & Kitchen Utensils Ltd v Gulabchand Popatial Shah) that contempt is criminal in character and liberty is at stake, so proof must exceed the civil standard before committal or enforcement orders issue.

p. 2
02

Whether the Applicant proved the alleged disobedience

Holding

Not proved; the photographic evidence could not show when the constructions were made and the Plaintiff's own conduct raised doubts

Reasoning

Both parties exhibited similar photographs of incomplete/abandoned structures, making timing impossible to establish. The Plaintiff, though claiming to have seen continued construction on 19th March 2017, did not raise the issue when the matter came up in court on 12th April 2017, undermining his allegations.

p. 3

Legal principles established

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  • The standard of proof in contempt of court is higher than a balance of probabilities but not exactly beyond reasonable doubt, because contempt is of criminal character and may cost a party his liberty

Court orders

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  1. 1.The Notice of Motion dated 3rd May, 2017 is dismissed
  2. 2.Costs of the application to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 3 and 4

Cases cited (2)

  • Mutika –V- Baharin Farm Ltd
    (1985) KLR 227
  • Refrigerator & Kitchen Utensils Ltd –V- Gulabchand Popatial Shah & Others
    Civil Appeal No.39 of 1990
Jurisdiction invoked
Order 40 Rules 3 and 4 of the Civil Procedure Rules (contempt/enforcement of court orders)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohamed Abdalla Masaza v Mohamed Abdalla Gosi & 2 others [2018] KEELC 4389 (KLR)", Case Analysis (2018). ELC Case No.335 of 2011 (Notice of Motion dated 3rd May, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4389/eng@2018-02-26

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