Valentine Situma Achungo & 2 others v Conrad Achungo & another [2020] KEELC 1393 (KLR)
The bottom line
#A Busia court refused to punish a landowner for contempt and lifted an injunction because the family claiming ownership couldn't back their claims with solid, first-hand evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a temporary injunction was merited
The application for a temporary injunction was dismissed because the applicants did not demonstrate the Giella v Cassman Brown principles
The court observed that the applicants did not endeavour to demonstrate existence of the principles for granting an order of injunction, including irreparable harm incapable of compensation, as the 1st defendant had pointed out. Consequently the interim injunction issued on 17th April 2020 was vacated, while the status quo order remained in place pending determination of the suit.
Whether the 1st defendant was in contempt of the order of 7/10/2019
Contempt was not proved; the application was dismissed
The court applied the strict proof standard and the Mutitika v Baharini Farm test that proof be consistent with the gravity of the alleged contempt. The status of Mary Nyabola on the land was doubtful as she was not a party nor an affidavit deponent, and the alleged assault of Charles Mulindo rested on a P3 form without an affidavit linking the 1st defendant, and on hearsay depositions that were uncorroborated.
Whether the omnibus application combining injunction and contempt prayers was procedurally defective
The court noted the application was an omnibus but determined it on its merits rather than striking it out on that basis
The 1st defendant argued that injunction and contempt prayers should be brought in two distinct applications, but the court did not dispose of the application on that ground; instead it addressed each prayer on its merits, dismissing the injunction limb for want of proof and the contempt limb for failure to meet the strict standard of proof.
Legal principles established
#- Contempt of court must be strictly proved because it borders on taking away the liberty of a person
- The standard of proof in contempt proceedings should be consistent with the gravity of the alleged contempt
- Hearsay depositions require corroboration where the deponent did not witness the incident
Court orders
#- 1.Prayer (2) seeking temporary orders of injunction dismissed
- 2.The interim order of injunction earlier issued on 17th April 2020 vacated
- 3.Orders of maintenance of status quo to remain in place pending determination of the suit
- 4.The application dismissed with costs to the 1st defendant
- Jurisdiction invoked
- Section 29 of the Environment and Land Court Act; Orders 40 and 51 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Valentine Situma Achungo & 2 others v Conrad Achungo & another [2020] KEELC 1393 (KLR)", Case Analysis (2020). Civil Case No 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1393/eng@2020-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.