Balcon Housing Company Limited & another v Elizabeth Njeri Hinga; National Emvironment Management Authority (NEMA) & 2 others (Intrested Parties) [2020] KEELC 2534 (KLR)
The bottom line
#A Kenyan tribunal dismissed a contempt claim against a landowner, ruling that unclear photos and third-party quarrying weren't enough to prove she disobeyed court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent wilfully disobeyed the NET stop order of 24th June 2016
No contempt established; Applicants failed to discharge the elevated burden of proof
The court noted contempt proceedings are quasi-criminal and a person cannot be punished unless deliberate disobedience is shown. The Respondent demonstrated she had already stopped quarrying after prior orders in ELC 445 of 2013 varied by consent. The Applicants' photographs were unclear photocopies showing stationary vehicles, with no evidence of blasting. Any ongoing illegal quarrying was attributed to third parties, and the Respondent had reported these activities to Kasarani police. She cannot be liable for the criminal acts of others.
Whether the alleged disobedience of the preservation orders issued by Justice Mbogholi Msagha in ELC 157 of 2008 could be determined in this application
No; that issue belongs to a separate contempt application already filed by the 1st Applicant
The court observed that Balcon Housing Company Limited had filed a separate application for contempt arising from disobedience of the preservation orders in ELC 157 of 2008. The same issue could therefore not be raised in this application, which concerns only the NET stop order.
Legal principles established
#- The standard of proof in contempt proceedings is higher than in ordinary civil cases; contempt must be proved beyond a balance of probabilities leaving no doubt as to the contemnor's culpability
Court orders
#- 1.The Notice of Motion dated 28th May 2019 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Contempt jurisdiction of the National Environment Tribunal in respect of its stop order issued under section 129(4) of the Environment Management and Coordination Act (EMCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Balcon Housing Company Limited & another v Elizabeth Njeri Hinga; National Emvironment Management Authority (NEMA) & 2 others (Intrested Parties) [2020] KEELC 2534 (KLR)", Case Analysis (2020). NET/179/2016 (Notice of Motion dated 28th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2534/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.