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ELCDismissedELC No. 74 of 2014· [2020] KEELC 2250 (KLR)

Julius Mutie Mutua & 2 others v East Africa Portland Cement Co. Ltd & 3 other [2020] KEELC 2250 (KLR)

Environment and Land Court
5 June 2020
OAO.A. Angote
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Landowners asking a Kenyan court to jail parties for ignoring orders must prove who did the disobedient acts, not just that they happened.

What this practically means

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Executive summary

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The Plaintiffs in ELC No. 74 of 2014 moved the Environment and Land Court at Machakos by a Notice of Motion dated 5th March 2019 seeking committal to civil jail for up to two years, or a fine of up to Kshs 1 million, of Stephen Nthei Kyalo (Acting Managing Director of the 1st Defendant), Philip Maingi (Acting Managing Director of the 3rd Defendant), Wario Sharma (OCPD Athi River) and William Matu (OCS Athi River) for allegedly disobeying court orders issued on 13th May 2016 and 15th February 2019 restraining dealings with Land Reference Number 10424. The 1st Plaintiff deponed that on 28th February 2019 the Defendants, aided by the police, demolished structures and dug trenches on the suit property, part of which had been leased to M/s Grain Bulk Handlers Limited. The 1st Defendant denied any activity on the land; the OCS deponed he only went to restore peace after a fight was reported; the 3rd Defendant filed Grounds of Opposition contending the application was incompetent and lacked particulars of contempt. Angote J framed two issues: awareness of the orders and guilt of contempt. He found the orders clear and binding on the corporate officers under Order 40 rule 8, with service admitted. However, applying the higher-than-balance-of-probability standard, he held the Plaintiffs' evidence - unattributed photographs of an excavator and trenches, unsupported by an affidavit of the photographer - failed to link the acts to the Defendants or their agents. The Notice of Motion was dismissed with costs in the cause.

Key legal issues

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01

Knowledge of and binding effect of the orders

Holding

The alleged contemnors, being officers of the corporations, were bound by the orders of 13th May 2016 and 15th February 2019, and service was admitted

Reasoning

Order 40 rule 8 of the Civil Procedure Rules extends an injunction against a corporation to its officers. Counsel for the 1st Defendant admitted service and that the terms were clear and binding. Awareness of the orders was therefore established.

02

Whether the Defendants committed the acts of contempt

Holding

The Plaintiffs failed to prove that the Defendants or their agents demolished the structures or dug the trenches

Reasoning

The only evidence was photographs of an excavator whose ownership was not established and whose date and circumstances of taking were not proved by affidavit of the photographer. Without linking the acts to the Defendants' instructions, the higher standard of proof in contempt was not met.

p. 3

Legal principles established

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  • The burden of proof in contempt proceedings is higher than on a balance of probability because contempt is an offence of a criminal character
  • The four elements of civil contempt require proof that the terms of the order were clear and unambiguous, that the defendant had knowledge or notice of them, that the defendant breached them, and that the breach was deliberate
  • An injunction directed to a corporation binds its members and officers whose personal action it seeks to restrain

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 5th March, 2019
  2. 2.Costs of the Application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 8

Cases cited (4)

  • Sam Nyamweya & Others vs. Kenya Premier League Ltd and Others
    [2015] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] eKLR
  • Cecil Miller vs Jackson Njeru & Another
    (2017) eKLR
  • Re Bramblevale Ltd
    (1970) Ch 128
Jurisdiction invoked
Inherent contempt jurisdiction of the Environment and Land Court over disobedience of its orders issued in ELC No. 74 of 2014 and Petition Number 10 of 2018, read with Order 40 rule 8 of the Civil Procedure Rules

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, "Julius Mutie Mutua & 2 others v East Africa Portland Cement Co. Ltd & 3 other [2020] KEELC 2250 (KLR)", Case Analysis (2020). ELC No. 74 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2250/eng@2020-06-05

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