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ELCDismissedNot stated in the judgment· [2020] KEELC 3090 (KLR)

Odinga Makaka & 3 others v Lucile Nambo Pamba Suing as the administrator of the estate of Hannington Ouma Pamba & 9 others [2020] KEELC 3090 (KLR)

Environment and Land Court
15 April 2020
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Busia Environment and Land Court refused to punish a man for disobeying a land order because the order's wording was too vague to prove a breach.

What this practically means

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Executive summary

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The plaintiffs/decree holders moved the Environment and Land Court at Busia by a Notice of Motion dated 4th April 2019, premised on Section 3A of the Civil Procedure Act and Order 12 rule 17 of the Rules, seeking leave to commence contempt proceedings against Wilberforce Onyango Pamba (the 5th defendant/respondent) and to have him punished for disobeying a consent order recorded and signed on 6th August 2018. The consent order stayed execution of the judgment delivered by Hon. Justice A. K. Kaniaru on 19th July 2017 and directed that the status quo obtaining on land parcel Samia/Budonga/22 and/or the subdivided parcels 2051-2058 prior to 19th July 2017 be maintained pending appeal. The applicants alleged that the respondent, a family member of the defendant, refused to obey the order by building and cultivating portions previously used by the applicants. The respondent opposed, contending there was no consent order on record, that the court was functus officio, that the application invoked wrong provisions of law, and that he was not served with a clear order. The court, citing Katsuri Ltd v Kapurchand Shah and Gatharia K. Mutikika v Baharini Farm Ltd, restated that contempt is quasi-criminal and requires proof to a standard higher than the balance of probabilities. It found the consent order unclear because it did not specify the particulars of the status quo prior to 19th July 2017, and the applicants' undated photograph did not connect the respondent to the alleged breach. Following Jihan Freighters Ltd v Hardware & General Stores Ltd and A.B. v R.B., the court held that an unclear order cannot sustain committal. The application was dismissed for want of merit with no order as to costs.

Key legal issues

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01

Clarity of the order alleged to have been disobeyed

Holding

The consent order did not specify the particulars of the status quo obtaining prior to 19th July 2017, and was therefore too unclear to sustain a committal

Reasoning

The order merely directed that the status quo prior to 19/7/2017 be maintained without describing that status quo. Neither the grounds on the application nor the supporting affidavit elaborated the prior status of the suit land. An undated photograph did not link the respondent to the alleged acts. Following Jihan Freighters and A.B. v R.B., an unclear order cannot ground contempt.

p. 3
02

Standard of proof and burden in contempt proceedings

Holding

The applicants, bearing the burden under Section 109 of the Evidence Act, failed to prove contempt to the quasi-criminal standard higher than the balance of probabilities

Reasoning

Citing Katsuri Ltd v Kapurchand Shah and Gatharia K. Mutikika v Baharini Farm Ltd, the court restated that contempt is quasi-criminal and guilt must be proved with strictness consistent with the gravity of the charge. The applicants submitted correctly that Section 109 of the Evidence Act imposed the burden on them, but did not discharge it.

p. 3

Legal principles established

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  • To sustain committal for contempt, the order alleged to have been disobeyed must be clear and precise, leaving no doubt as to what a party was to do or refrain from doing
  • Contempt proceedings are quasi-criminal and the standard of proof is higher than in civil cases

Court orders

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  1. 1.The application dated 4th April 2019 is dismissed for want of merit
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12 rule 17
  • Evidence ActSection 109

Cases cited (6)

  • Sam Nyamweya & 3 others v Kenya Premier League Ltd & 2 others
    (2015) eKLR
  • Justus Kariuki Mate & Ano v Martin Wambora & Ano
    (2014) eKLR
  • Katsuri Ltd vs Kapurchand Shah
    (2016) eKLR
  • Gatharia K. Mutikika vs Baharini Farm Ltd
  • Jihan Freighters Ltd v. Hardware & General Stores Ltd
  • A.B. & Another v. R. B.
    [2016] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 12 rule 17 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, "Odinga Makaka & 3 others v Lucile Nambo Pamba Suing as the administrator of the estate of Hannington Ouma Pamba & 9 others [2020] KEELC 3090 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3090/eng@2020-04-15

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