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ELCPartially AllowedChamber Summons application dated 22/10/2019, arising from Petition judgment of 31st July 2019· [2020] KEELC 1996 (KLR)

Stephen Mbugua Gituthi & 2 others v National Land Commission & another [2020] KEELC 1996 (KLR)

Environment and Land Court
18 June 2020
JKJ.G. Kemei
4,208 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court held a water board CEO in contempt for ignoring orders protecting landowners, but spared a land commission official who was never properly served.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J.G. Kemei, J) determines a Chamber Summons dated 22/10/2019 seeking findings of contempt and punishment against the Acting Chief Executive Officer of the National Land Commission (1st Respondent) and the Chief Executive Officer of Athi Water Services Board (2nd Respondent) for disobeying the judgment and decree of 31st July 2019. That judgment had declared the acquisition of the Applicants' suit parcels ultra vires the Constitution and statute and prohibited vesting of the wayleave without due process and prompt just compensation. The court set out three ingredients of contempt: a clear and unambiguous order, knowledge of the order, and conduct contrary to it. It held the orders were clear. On knowledge, it found the CEO of the 2nd Respondent had notice - the judgment was delivered in the presence of its advocates, the decree and penal notice were served on 9/8/2019, and the board acknowledged the orders in a letter of 12/9/2019. By contrast, service on the 1st Respondent was effected on an undisclosed secretary, so knowledge on the part of its Acting CEO was not proved to the required standard, which the court noted is slightly higher than in an ordinary civil suit. Photographs of October 2019 showing fresh digging and felling of trees, unrebutted by the 2nd Respondent, established continued willful disobedience. The court held the CEO of the 2nd Respondent in contempt but made no finding against the Acting CEO of the 1st Respondent, and deferred mitigation and sentencing to a mention on 7/7/2020. No express costs order was made.

Key legal issues

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01

Clarity and unambiguity of the orders of 31/7/2019

Holding

The judgment and orders were clear and free from ambiguity, having been acknowledged by the 2nd Respondent.

Reasoning

The court examined the judgment of 31/7/2019 which declared the acquisition ultra vires and prohibited vesting of the wayleave except with due process and just compensation. The 2nd Respondent had acknowledged the orders in its letter of 12/9/2019, and no party suggested any ambiguity. The first ingredient of contempt was thus satisfied.

p. 5
02

Knowledge of the orders by the alleged contemnors

Holding

The CEO of the 2nd Respondent had knowledge (judgment delivered in presence of its advocates, decree and penal notice served, orders acknowledged); the Acting CEO of the 1st Respondent's knowledge was not proved.

Reasoning

Service on the 1st Respondent was effected on an undisclosed secretary, which did not satisfy the law on service on a corporation so as to infer knowledge by the Acting CEO. For the 2nd Respondent, counsel were present at delivery, the decree and penal notice were served, and the board acknowledged the orders in writing and through its legal officer.

p. 5
03

Whether the 2nd Respondent willfully disobeyed the orders

Holding

Yes; the CEO of the 2nd Respondent was found in contempt for willful disobedience.

Reasoning

The 2nd Respondent admitted machinery on the suit lands and continued works; photographs taken in October 2019 showed recent digging and felling of trees, unrebutted by the 2nd Respondent. Its defence was a general denial and reliance on pending gazettement of the 1st Respondent's commissioners, which did not amount to compliance.

p. 6

Legal principles established

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  • The ingredients of contempt are: (a) a clear and unambiguous court order; (b) the alleged contemnor's knowledge of the order; and (c) conduct contrary to the order.
  • Following the nullification of the Contempt of Court Act No. 46 of 2016, contempt is governed by section 5 of the Judicature Act, importing the English law of contempt.
  • The standard of proof in contempt proceedings is slightly higher than in an ordinary civil suit.

Court orders

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  1. 1.That the CEO of the 2nd Respondent (Athi Water Services Board) is held in contempt of the Court orders dated 31st July 2019
  2. 2.That the Acting CEO of the 1st Respondent (National Land Commission) is NOT held in contempt, knowledge of the orders not having been proved
  3. 3.That the matter be mentioned on 7/7/2020 for mitigation and sentencing and/or further orders

Authorities

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Legislation

  • Contempt of Court ActEntire Act (No. 46 of 2016, declared null and void)
  • Judicature ActSection 5(1) and 5(2)
  • Constitution of KenyaArticles 3, 4(2), 10, 159(1), 160
  • Evidence ActSection 65(8)
  • Civil Procedure Rules (England) / Rules of the Supreme CourtRules 81.4-81.9 (2012 Rules) on enforcement and service of judgments and orders

Cases cited (8)

  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Martin Nyaga Wambora & 4 Others v Speaker of the Senate & others
    (2014) eKLR
  • Martin Nyaga Wambora and Another v Justus Kariuki Mate & Another
    [2014] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Nthabiseng Pheko v Ekurhuleni Metropolitan Municipality & another
    CCT 19/11 (75/2015)
  • Carey v Laiken
    [2015] SCC 17
  • Ex parte Langley
    1879, 13
Jurisdiction invoked
Section 5 of the Judicature Act; contempt jurisdiction under Article 159 of the Constitution (English common law contempt applied following nullification of the Contempt of Court Act, 2016)

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, "Stephen Mbugua Gituthi & 2 others v National Land Commission & another [2020] KEELC 1996 (KLR)", Case Analysis (2020). Chamber Summons application dated 22/10/2019, arising from Petition judgment of 31st July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1996/eng@2020-06-18

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