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ELCDismissedNot stated in the judgment (application dated 27th August 2018 in an existing suit)· [2019] KEELC 152 (KLR)

Mahabub Salim & 4others v Eliud Timothy Mwamunga & 2 others [2019] KEELC 152 (KLR)

Environment and Land Court
31 October 2019
1,070 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 an official for disobeying a court order because the community claiming the breach brought no real evidence to prove it.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by an application dated 27th August 2018 under Sections 5(1) of the Judicature Act, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 40(3) and 51(1) of the Civil Procedure Rules, seeking that E. O. Bigogo, Assistant County Commissioner, Kikambala Division, be cited for contempt of a court order issued on 12th May 2015 restraining the Assistant County Commissioner and senior police officers from deploying officers to harass, threaten, demolish or evict the plaintiffs from the suit property pending determination of an application. They also sought warrants of arrest and committal to civil jail for up to six months, alleging continued harassment, fictitious criminal charges against Barani Community Self Help Group officials, and incitement of strangers to invade the Barani Settlement Scheme, all despite service of the order on 15th July 2015 and 23rd August 2018. No response was filed. The court, however, held that the law requires an applicant for contempt orders to prove the alleged disobedience beyond a balance of probabilities, since such orders take away the liberty of the alleged contemnor. Applying Sections 108 and 109 of the Evidence Act and the Gathari K. Mutitika v Baharini Farm Ltd standard, the court found the applicants' averments uncorroborated: no charge sheets, OB extracts, photographs or names of alleged invaders were annexed. The application was dismissed with no order as to costs.

Key legal issues

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01

Standard and burden of proof in contempt proceedings

Holding

The applicants bore the burden of proving the alleged disobedience and failed to discharge it; contempt applications engage liberty and require precise definition and satisfactory proof of the breach

Reasoning

The court held that although it would have allowed the application as presented, the law requires proof beyond a balance of probabilities because contempt orders take away liberty. Relying on Sections 108 and 109 of the Evidence Act and the Gathari K. Mutitika case, the court found the averments about criminal charges and invasions uncorroborated - no charge sheet, OB extract, photographs or names were annexed - so the alleged acts of disobedience were not satisfactorily proved.

p. 3

Legal principles established

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  • An applicant seeking contempt orders must prove the alleged disobedience since contempt orders take away the liberty of the alleged contemnor
  • Where the liberty of a subject is involved, the breach must be precisely defined and satisfactorily proved

Court orders

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  1. 1.The application dated 27th August 2018 is dismissed for lack of proof of the alleged disobedience
  2. 2.No order as to costs

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40(3), Order 51(1)
  • Evidence Act (Cap 80, Laws of Kenya)Sections 108 and 109

Cases cited (2)

  • Katsuri Ltd Vs Kapurchand Depar Shah
    (2016) eKLR
  • Gathari K. Mutitika Vs Baharini Farm Ltd
    (1985) eKLR
Jurisdiction invoked
Sections 5(1) of the Judicature Act; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40(3) and 51(1) 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, "Mahabub Salim & 4others v Eliud Timothy Mwamunga & 2 others [2019] KEELC 152 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 27th August 2018 in an existing suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/152/eng@2019-10-31

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