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ELCDismissedNotice of Motion dated 11th January 2018 (suit over L.R. No. Mutira/Kanyei/2276)· [2019] KEELC 2458 (KLR)

James Njiraini v Josphine W. Mithamo & another [2019] KEELC 2458 (KLR)

Environment and Land Court
28 June 2019
ECE.C. Cherono
1,097 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 punish a woman for burying her son on land she already occupied, because the landowner could not prove she deliberately broke a court order.

What this practically means

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Executive summary

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The applicant, registered owner of land parcel Mutira/Kanyei/2276 acquired through Succession Cause No. 836 (Kerugoya), sued the respondents, licencees of his father who allegedly refused to vacate. On 4th April 2017 the parties recorded a consent order maintaining the status quo and prohibiting interference with ground boundaries. On 5th January 2018 the 2nd respondent buried her son, Joseph Muthii Kangangi, on the portion of the suit property she occupied. The applicant filed a notice of motion dated 11th January 2018 under Sections 1A, 1B and 3A of the Civil Procedure Act seeking that the 2nd respondent be cited for contempt and committed to civil jail for six months, that the body be exhumed, that police and public health officers provide security and supervision for the exhumation at her cost, and costs of the application. The 2nd respondent denied breaching the order, stating she buried her son on the portion she was utilizing, that the applicant knew of her intention, and that her family's use of the land and existing graves reflected the true status quo. The court, applying Shimmers Plaza Ltd v National Bank of Kenya Ltd and the standard in Ketsuri Ltd v Kapurchand Depar Shal as drawn from Peter K. Yego v Pauline Nekesa Kode, held that contempt must be proved beyond reasonable doubt including deliberateness. Finding that the 2nd respondent buried her son on the very portion she occupied without interfering with any boundary, the court held this was not contempt, dismissed the application with costs in the cause.

Key legal issues

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01

Whether burying a deceased person on the portion of land one occupies, where a consent order maintains status quo, amounts to contempt

Holding

It does not; the applicant failed to prove deliberate breach of the consent order to the required standard

Reasoning

The consent order required maintenance of status quo and non-interference with boundaries, with each party occupying their respective portions. The 2nd respondent buried her son on the portion she was occupying and did not alter any boundary. Given the criminal character of contempt, the applicant had to prove disobedience beyond reasonable doubt, which he failed to do. Accordingly the application lacked merit.

p. 2

Legal principles established

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  • Court orders must be obeyed and wilful disobedience attracts punishment
  • Contempt must be proved beyond reasonable doubt, higher than the civil standard, including that the breach was deliberate or wilful
  • Compliance with the terms of a consent order maintaining status quo is not contempt

Court orders

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  1. 1.The application dated 11th January 2018 dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 63(c)

Cases cited (3)

  • Shimmers Plaza Limited Vs National Bank of Kenya Ltd
    (2015) e K.L.R
  • Ketsuri Limited Vs Kapurchand Depar Shal
    (2016) e K.L.R
  • Peter K. Yego & another Vs Pauline Nekesa Kode
    null
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act

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, "James Njiraini v Josphine W. Mithamo & another [2019] KEELC 2458 (KLR)", Case Analysis (2019). Notice of Motion dated 11th January 2018 (suit over L.R. No. Mutira/Kanyei/2276). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2458/eng@2019-06-28

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