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ELCDismissedNot stated in the judgment· [2020] KEELC 1406 (KLR)

Hellen Mbatha Kanyanya & another v Rhoda Muvengi Mbithuka & 2 others [2020] KEELC 1406 (KLR)

Environment and Land Court of Kenya
28 August 2020
CMC.G. Mbogo
2,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to jail defendants for contempt because the plaintiffs couldn't prove when the fence was built—evidence and timing matter enormously in contempt cases.

What this practically means

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Executive summary

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This was a ruling on the Plaintiffs'/Applicants' notice of motion dated 26th May 2020 seeking committal to civil jail of the three Defendants/Respondents for contempt of orders issued by the court on 14th November 2017 maintaining the status quo of the suit property, Nzaui/Nziu/907. The Applicants, supported by the affidavit of Hellen Mbatha Kanyanya, alleged that despite being served with and aware of the orders, the Respondents erected a fence and carried out construction works on the property, thereby breaching the orders and undermining the rule of law. They also sought an injunction restraining further fencing or activity, an order to purge contempt by pulling down the fence, and police enforcement. The Respondents, through the replying affidavit of James Musyoki Kanyanya, denied breach, asserting they had fully complied, that the half fence predated the suit, and that they undertook to continue observing the orders. Counsel for the Respondents relied on Katsuri Ltd v Kapruchand Depar Shar and Woburn Estate Limited v Margaret Bashforth, emphasising the four elements of civil contempt and the heightened standard of proof. The court found that the orders were made and known to the Respondents, but held the Applicants had failed to prove when the fence was erected or that the Respondents' conduct was deliberate, applying the Bramblevale principle that contempt must be satisfactorily proved with further evidence to incriminate. The application was dismissed with costs to the Defendants/Respondents on 28th August 2020.

Key legal issues

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01

Whether the Plaintiffs/Applicants proved breach of the status quo orders of 14th November 2017 to the required standard

Holding

The application was dismissed because the Applicants did not prove when the fence was erected or that the Respondents deliberately breached the order; there was no evidence to incriminate the Respondents

Reasoning

The court accepted that the orders of 14th November 2017 were made and that the Respondents knew of them, but held that the Applicants bore the burden of proving breach and deliberateness. The Applicants failed to show when the fence appearing in the annexed photographs was erected and could not leave the court to speculate. Applying the Bramblevale principle, the court found no further evidence to incriminate the Respondents and declined to exercise the power to commit, which must be adopted only as a last resort.

p. 3

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order, knowledge or notice, breach, and deliberate conduct
  • The standard of proof in civil contempt is higher than in ordinary civil cases, and the applicant must prove the breach and its deliberate character
  • Contempt of court is an offence of criminal character which must be satisfactorily proved with further evidence to incriminate the alleged contemnor

Court orders

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  1. 1.The Plaintiffs'/Applicants' notice of motion application dated 26th May 2020 is dismissed
  2. 2.Costs of the application awarded to the Defendants/Respondents

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A and 63(c)
  • Civil Procedure Rules, 2010Order 40 Rule 3(1) and Order 51
  • Constitution of KenyaArticle 10
  • Supreme Court of England RulesOrder 52 Rule 3

Cases cited (3)

  • Katsuri Ltd vs. Kapruchand Depar Shar
    [2016] eKLR
  • Woburn Estate Limited vs. Margaret Bashforth
    [2016] eKLR
  • Re Bramblevale Ltd
    [1970] 1 CH 128
Jurisdiction invoked
Section 5 of the Judicature Act and Order 40 Rule 3(1), Order 51 of the Civil Procedure Rules, 2010, together with sections 1A, 1B, 3, 3A and 63(c) 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, "Hellen Mbatha Kanyanya & another v Rhoda Muvengi Mbithuka & 2 others [2020] KEELC 1406 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1406/eng@2020-08-28

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