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ELCOtherNot stated in judgment (committal application dated 25th May, 2020 arising from a decree issued 27/2/2019)· [2020] KEELC 561 (KLR)

Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2020] KEELC 561 (KLR)

Environment and Land Court
25 November 2020
4,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan land court declined to jail parties for disobeying a court order, confirming that knowledge of an order counts as service and jail is truly a last resort.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka, delivered by P. M. Njoroge J on 25th November 2020, determines a notice of motion dated 25th May 2020 by the applicant seeking a finding that all twelve respondents were in contempt of a permanent injunction contained in a decree issued on 27th February 2019, following a judgment of 19th December 2018 which dismissed the applicant's suit but allowed the 1st respondent's counter-claim as applicant turned enforcement mechanism is inverted in the record: the decree restrained the applicant (originally plaintiff) from interfering with the 1st defendant's use of L.R. No. Rukurini/133, yet the applicant sought committal for interference with his own use. The court confirmed its contempt jurisdiction under section 5(1) of the Judicature Act and section 29 of the Environment and Land Court Act, adopted the quasi-criminal standard of proof higher than balance of probabilities but below beyond reasonable doubt, held that notice to the Attorney General or DPP is no longer required before commencing contempt proceedings, and found on the totality of the evidence that all alleged contemnors were aware of the judgment, knowledge superseding personal service. However, on 16th November 2020 the applicant's advocate disclosed that the applicant had agreed with the 4th, 5th, 6th, 7th, 9th and 10th respondents that they would purchase the portions they occupy, so the application was substantially compromised and prayer (b) not tenable. Applying the Katsuri principle that committal is a last resort, the court excluded those six respondents and found them not in contempt, advised the applicant to consider other enforcement measures or file a fresh application, and ordered costs in the cause.

Key legal issues

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01

Competence of contempt proceedings without notice to the Attorney General/DPP

Holding

The application is competently before the court; following English law as incorporated by section 5(1) of the Judicature Act, prior notice to the Crown is no longer required

Reasoning

Section 5(1) of the Judicature Act adopts English contempt law. After the Woolf reforms and replacement of Order 52 by Civil Procedure Rule 81 in England, notice to the Crown before commencing contempt proceedings was abolished. Relying on the Football Federation case, the court held no notice to the Attorney General or DPP was necessary before filing the contempt application.

p. 3
02

Validity and service/awareness of the decree

Holding

A valid and unambiguous decree was issued on 27/2/2019 and all alleged contemnors were aware of the judgment and decree, whether by presence at delivery, service, or circumstance

Reasoning

The judgment of 19/12/2018 was delivered in the presence of the 1st respondent and his counsel, who promptly filed a Notice of Appeal. A decree was extracted, sealed and served by a licensed process server, except as to some respondents who were not found. The court found knowledge could be proved circumstantially and that the respondents never denied awareness of the decree.

p. 7
03

Whether to commit the respondents and punish them for contempt

Holding

The court declined to commit: the application had been substantially compromised and committal is a last resort

Reasoning

The applicant's advocate disclosed on 16th November, 2020 that the applicant and the 4th, 5th, 6th, 7th, 9th and 10th respondents had reached an arrangement for purchase of the portions they occupy, compromising prayer (b). Adopting the Katsuri principle that committal is a last resort, and noting contempt proceedings would not deliver the fruits of the judgment, the court excluded those respondents and left the applicant to pursue other enforcement measures.

p. 6

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below the criminal standard
  • Knowledge of a court order supersedes the requirement of personal service
  • Committal for contempt is a last resort to be exercised with great care
  • An intention to appeal does not excuse disobedience of a subsisting court order

Court orders

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  1. 1.The 4th, 5th, 6th, 7th, 9th and 10th respondents are excluded from this application and are found not to be in contempt of court
  2. 2.The applicant should consider filing another application excluding the 4th, 5th, 6th, 7th, 9th and 10th respondents
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court Act; the court being established under Article 162 of the Constitution with the status of the High Court

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, "Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2020] KEELC 561 (KLR)", Case Analysis (2020). Not stated in judgment (committal application dated 25th May, 2020 arising from a decree issued 27/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/561/eng@2020-11-25

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