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ELCDismissedNot stated in the excerpt (ELC suit, Machakos)· [2019] KEELC 1881 (KLR)

Simon Ngao Mbithi v Daniel Kiilu Ngomo (Environment & Land Case 313 of 2009) [2019] KEELC 1881 (KLR)

Environment and Land Court
12 July 2019
OAO.A. Angote
1,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt claim because weak, undated photo evidence failed to meet the near-criminal standard of proof required.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 15th August 2018 seeking that the Defendant be cited for contempt of the judgment delivered by Justice Angote on 25th May 2018, which restrained the Defendant from trespassing on, cultivating, cutting trees, grazing or in any manner interfering with parcel Muputi/Kimutwa/1820, and that he be committed to civil jail until he purged the contempt. The Plaintiff alleged that the Defendant, with knowledge of the judgment, constructed a commercial building on the suit land and, together with his son, cut down trees and grass and grazed on the land. The Defendant denied ever being served with the judgment or decree, denied constructing buildings after the judgment, and contended that the alleged acts were not proved to the required standard. The court first established knowledge: although neither advocate was in court when judgment was read, the Defendant's advocate filed a Notice of Appeal on 31st May 2018 and requested typed proceedings and a certified judgment, demonstrating awareness of the judgment and its contents. Relying on Shimmers Plaza Limited v. National Bank of Kenya and United States v. Revie, the court held that knowledge of an advocate is presumed to be communicated to the client, making the orders binding on the Defendant from 30th May 2018. On the alleged disobedience, the court examined the Plaintiff's photographs and found them undated, uninformative as to the acts or the identity of the persons shown, and inconclusive on whether the structure was on the suit land. Applying the standard from Hakika Transport Services (citing Mutitika v. Baharini Farm) that contempt must be proved almost but not exactly beyond reasonable doubt, the court found the Plaintiff had not discharged that burden and dismissed the motion with costs.

Key legal issues

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01

Knowledge of the judgment through the defendant's advocate

Holding

The Defendant was aware of the judgment from 30th May 2018, the date his advocate signed the Notice of Appeal, because knowledge of the advocate is presumed to be communicated to the client

Reasoning

Although neither party's advocate was in court when judgment was delivered, the Defendant's advocate filed a Notice of Appeal on 31st May 2018 and applied for typed proceedings and certified judgment, showing awareness of both the judgment and its contents. Relying on Shimmers Plaza and United States vs. Revie, the court held the orders became binding on the Defendant from 30th May 2018.

p. 2
02

Whether contempt was proved to the required standard

Holding

The Plaintiff failed to prove the alleged acts of contempt; the photographs were undated, did not show the acts or the identity of the individuals, and did not establish the structure was on the suit land

Reasoning

The court applied the standard from Hakika Transport Services (citing Mutitika v. Baharini Farm) that contempt must be proved almost to beyond reasonable doubt. The photographic evidence was inconclusive: undated images, unidentified individuals, and a structure whose location on the suit land was unestablished. Knowledge of the order alone was therefore insufficient.

p. 2

Legal principles established

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  • Where an advocate representing a litigant becomes aware of an order of the court, it is presumed that he will inform his client of such an order, and the client is bound from the date of the advocate's knowledge
  • Before finding a person in contempt, the court must be satisfied the act was committed with full knowledge or notice of the order, and the standard of proof is higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.The Notice of Motion dated 15th August 2018 is dismissed with costs

Authorities

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Cases cited (4)

  • Shimmers Plaza Limited vs. National Bank of Kenya
    (2015) eKLR
  • Hakika Transport Services Limited vs. Kenya Long Distance Truck Drivers & Allied Workers Union
    (2015) eKLR
  • United States vs. Revie
    834 F.2d 1198, 1203 (5th Cir. 1987)
  • Mutitika v. Baharini Farm Limited
    [1985] KLR 229, 234
Jurisdiction invoked
Inherent contempt jurisdiction of the Environment and Land Court to enforce its own judgment (underlying judgment delivered by Justice Angote on 25th May 2018)

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, "Simon Ngao Mbithi v Daniel Kiilu Ngomo (Environment & Land Case 313 of 2009) [2019] KEELC 1881 (KLR)", Case Analysis (2019). Not stated in the excerpt (ELC suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1881/eng@2019-07-12

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