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ELCAllowedKapenguria PMCC No. 11 of 2019 (Appeal)· [2020] KEELC 228 (KLR)

Cleophas Aukor v Longariatum Loyapangole & John Ramon [2020] KEELC 228 (KLR)

Environment and Land Court
1 October 2020
MNMwangi Njoroge
1,092 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed magistrates can punish contempt, but a court must consider the police report it ordered before dismissing such applications.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kitale against a ruling delivered on 22nd August 2019 in Kapenguria PMCC No. 11 of 2019. The appellant, who was the plaintiff in the lower court, had sought orders committing the defendants to civil jail for contempt of status quo orders issued by the trial court, and an order directing the O.C.S. Kapenguria and/or D.C.I.O. to visit the suit land and establish the extent of encroachment. The trial magistrate dismissed the application, principally on the ground that it lacked a penal notice, and did not consider the police site visit report which had been produced pursuant to the court's own order. Mwangi Njoroge J, applying the first-appeal duty to re-evaluate evidence, held that magistrates have power to punish contempt under section 10 of the Magistrates' Courts Act, that the burden of proving disobedience lay on the applicant, and that the trial magistrate's failure to apply her mind to the police report - which showed encroachment - was fatal to the ruling, since the report taken with the pleadings might have led to a different finding. The appeal was allowed, the order dismissing the application dated 2/5/2019 was set aside, the respondents were ordered to bear the costs of the appeal jointly and severally, and the entire suit was transferred to the Kitale Chief Magistrate's Court for hearing de novo of the contempt application and disposal of the main suit, with a guideline that the police report be considered.

Key legal issues

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01

Whether the trial court's failure to consider the police site visit report in the contempt ruling was fatal

Holding

Yes - the magistrate failed to apply her mind to the report she had herself ordered, which may have led to a different finding, so the ruling was set aside and the application remitted for hearing de novo

Reasoning

The court had ordered police to visit the scene and report on encroachment; the report showed encroachment. The trial magistrate's ruling did not address the report at all and instead dismissed the application on the technical ground of absence of penal notice. Since the report, taken with the pleadings and affidavits, might have produced a different finding, the dismissal could not stand and the matter was remitted for fresh consideration.

p. 2
02

The statutory basis for punishing contempt in magistrates' courts and the burden of proof

Holding

Section 10 of the Magistrates' Courts Act empowers magistrates to punish for contempt; willful disobedience of orders in civil proceedings constitutes contempt, and the burden of proving disobedience lay on the applicant

Reasoning

The court cited section 10(1) and 10(3) of the Magistrates' Courts Act establishing the power to punish contempt and the definition of civil contempt. It then held that the burden lay with the applicant to demonstrate disobedience, and found from the police report that there was encroachment, though the salient question of breach of the order remained for re-determination.

p. 2

Legal principles established

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  • Magistrates' courts have power to punish for contempt under section 10 of the Magistrates' Courts Act, including willful disobedience of orders in civil proceedings
  • On a first appeal, the court must re-evaluate the evidence and make its own conclusions
  • The burden of proving contempt lies on the applicant
  • A court cannot ignore a report it itself ordered; failure to apply its mind to such material vitiates the ruling

Court orders

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  1. 1.Appeal allowed
  2. 2.Order dismissing the application dated 2/5/2019 set aside
  3. 3.Respondents to bear costs of the appeal jointly and severally
  4. 4.Civil suit Kapenguria PMCC No. 11 of 2019 transferred to Kitale Chief Magistrate's Court for hearing de novo of the application dated 2/5/2019 and for hearing and disposal of the main suit
  5. 5.Guideline issued that in trying the contempt issue, the police report submitted to court shall be considered

Authorities

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Legislation

  • Magistrates' Courts ActSection 10(1)
  • Magistrates' Courts ActSection 10(3)

Cases cited (2)

  • Jacinta Njeru Kiatha Vs David K. Kanyiri
    (2015) eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd
    (1968)
On appeal from
Kapenguria Principal Magistrate's Court
PMCC No. 11 of 2019
Jurisdiction invoked
First appeal from the magistrates' court (appeal initially filed in Kapenguria High Court, later transferred to the ELC, Kitale)

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, "Cleophas Aukor v Longariatum Loyapangole & John Ramon [2020] KEELC 228 (KLR)", Case Analysis (2020). Kapenguria PMCC No. 11 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/228/eng@2020-10-01

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