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ELCAllowedNot stated in the judgment (suit over L.R. No. Muputi/Kimutwa/226)· [2020] KEELC 566 (KLR)

Willy Mwololo Muindi v Kasyoka Mbithi Nduva [2020] KEELC 566 (KLR)

Environment and Land Court
20 November 2020
OAO.A. ANGOTE
901 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who ignored a court injunction was found in contempt and faces arrest, proving courts will enforce their orders.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Machakos by Notice of Motion dated 28th July 2020 seeking committal of the Defendant, Kasyoka Mbithi Nduva, for disobeying a permanent injunction issued on 5th July 2019 restraining him from encroaching upon, trespassing on, grazing on, occupying or in any manner interfering with L.R. No. Muputi/Kimutwa/226. The Plaintiff deponed that the Decree issued on 26th September 2019 was served on the Defendant on 20th December 2019, yet the Defendant continued to trespass and graze cattle on the suit property, prompting reports to Konza Police Post on 31st March, 8th April and 26th April 2020, to which police took no action. The application proceeded unopposed, the Defendant having been served but choosing not to file a response. Applying Katsuri Limited v. Kapurchand Depar Shah and the elements from The Law of Contempt (Bonnie and Lowe), the court held that the order was clear and unambiguous, that the Defendant had knowledge of it through personal service of the Decree, and that the photographic and Occurrence Book evidence of continued grazing was uncontroverted. The court found the Defendant in contempt, ordered the Officer in Charge of Konza Police Post to arrest him and present him for mitigation and sentencing, and awarded costs of the application to the Plaintiff. Judgment delivered at Machakos on 20th November 2020 by O.A. Angote, Judge.

Key legal issues

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01

Whether the Defendant was in contempt of the permanent injunction issued on 5th July 2019

Holding

The Defendant was in contempt: the order was clear, he was personally served with the Decree on 20th December 2019, and photographic and OB evidence showed continued grazing and trespass which he did not controvert.

Reasoning

The court set out the elements of contempt from Katsuri Limited and the Law of Contempt text. It found the 5th July 2019 injunction clear and binding; service of the Decree on 20th December 2019 was proved by affidavit of service and not denied; photographs showed cattle grazing on the suit property and OB reports recorded continued defiance, none of which the Defendant, though served with the application, rebutted.

p. 2

Legal principles established

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  • Contempt of court is of a criminal character and must be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt.
  • The four elements to be proved in contempt proceedings are clarity of the order, knowledge/notice of its terms, breach, and deliberateness of the breach.

Court orders

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  1. 1.The Defendant is found to be in contempt of the Decree of the court of 5th July 2019 and issued on 26th September 2019
  2. 2.The Police officer in charge of Konza Police Post to arrest the Defendant and present him in court for mitigation and sentencing
  3. 3.The Defendant to pay the costs of the Application

Authorities

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Cases cited (1)

  • Katsuri Limited vs. Kapurchand Depar Shah
    [2016] eKLR
Jurisdiction invoked
Inherent contempt powers of the court in respect of disobedience of its own decree (not expressly cited in the judgment)

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, "Willy Mwololo Muindi v Kasyoka Mbithi Nduva [2020] KEELC 566 (KLR)", Case Analysis (2020). Not stated in the judgment (suit over L.R. No. Muputi/Kimutwa/226). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/566/eng@2020-11-20

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