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ELCDismissedNotice of Motion dated 31st January 2018 (in Petition dated 23rd November 2013)· [2020] KEELC 2810 (KLR)

Joyce Muthoni Waciuma v Cabinet Secretary for Lands, Housing and Urban Development & 4 others [2020] KEELC 2810 (KLR)

Environment and Land Court
6 May 2020
JOJ.O. Olola
1,445 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's bid to jail officials for ignoring a court decree failed because the officials had actually complied, showing contempt claims demand proof of deliberate disobedience.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 31st January 2018 by Joyce Muthoni Waciuma, the Petitioner in a first-instance petition concerning title to Chembe/Kibabamshe/424. Following a Judgment by Angote J on 26th June 2015, decree issued 17th September 2015, the Respondents were ordered to reinstate land records, retain the Petitioner as registered proprietor, and refrain from interfering with her ownership. The application sought leave for new advocates on record, committal of the Respondents' officials to prison for up to six months for contempt, a declaration that a Kenya Gazette Notice of 17th July 2017 published by the 2nd Respondent was illegal and in contempt of the decree, and an order compelling implementation of the decree. The first limb was resolved by consent dated 8th April 2019. The 1st, 3rd, 4th and 5th Respondents, through an affidavit of the District Land Registrar Kilifi, acknowledged service of the decree and asserted compliance by reconstructing the Green Card, showing the Petitioner as registered proprietor effective 21st December 1978. The 2nd Respondent filed no response. Olola J applied the high contempt threshold from Shimmers Plaza Ltd v National Bank of Kenya Ltd, found the 1st, 3rd, 4th and 5th Respondents had complied with the decree, and held the Gazette Notice's entry 'under Court Injunction' did not revoke or interfere with the Petitioner's ownership or quiet possession. The application was dismissed with costs on 6th May 2020.

Key legal issues

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01

Whether the Respondents committed contempt of the decree

Holding

No contempt was established against the 1st, 3rd, 4th and 5th Respondents; they reconstructed the Green Card pursuant to the decree

Reasoning

The Court held that the rationale of contempt is to punish deliberate disobedience to uphold the rule of law, but the threshold is high. The Respondents produced a Green Card reconstructed pursuant to the decree showing the Petitioner as registered proprietor effective 21st December 1978, demonstrating compliance rather than willful disobedience.

p. 3
02

Whether the Gazette Notice of 17th July 2017 breached the decree

Holding

The notice did not revoke or interfere with the Petitioner's ownership and quiet possession

Reasoning

The impugned notice reported the 2nd Respondent's findings on parcels in the Chembe Kibabamshe Adjudication Section. As regards the suit property, the determination simply read 'under Court Injunction', which in the Court's view neither revoked the title nor interfered with the Petitioner's ownership or quiet possession, so no contempt arose from it.

p. 3

Legal principles established

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  • Contempt requires proof beyond any shadow of a doubt, with full knowledge or notice of the order, given the high threshold involving possible deprivation of liberty

Court orders

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  1. 1.The Notice of Motion dated 31st January 2018 is dismissed
  2. 2.The Petitioner is to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Land Registration ActSections 25 and 26

Cases cited (1)

  • Shimmers Plaza Ltd –vs- National Bank of Kenya Ltd
    (2015) eKLR
Jurisdiction invoked
Contempt jurisdiction of the Environment and Land Court in a Petition on Article 40(1) of the Constitution (application under Notice of Motion in a first-instance petition)

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, "Joyce Muthoni Waciuma v Cabinet Secretary for Lands, Housing and Urban Development & 4 others [2020] KEELC 2810 (KLR)", Case Analysis (2020). Notice of Motion dated 31st January 2018 (in Petition dated 23rd November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2810/eng@2020-05-06

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