Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Petition No. E033 of 2021· [2021] KEELC 510 (KLR)

Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees Ex-parte George Kwendo & 8 others; National Environment Management Authority (Interested Party) [2021] KEELC 510 (KLR)

Environment & Land Court of Kenya at Nairobi
2 December 2021
3,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court found nine company trustees guilty of disobeying court orders and now they face possible fines or jail.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nairobi (O. A. Angote J) determines a Notice of Motion dated 29th September 2021 by Kipsirgoi Investments Limited seeking committal of the nine Registered Trustees of Local Authorities Pension Trust for contempt of conservatory orders issued on 17th September 2021 restraining construction or road works on L. R. No. 13065 in Ololua Ridge, Karen. The Petitioner alleged that despite service of the orders by email on 17th September 2021 and their being pinned at the property's gates, the Trustees directed continued road works, including delivery of sand, cabro and heavy machinery, on 22nd to 28th September and on 2nd and 4th October 2021, completing the restrained works to about 95%. The Respondent and Trustees filed a preliminary objection contending that the certificates of authenticity of the electronic photographs did not comply with section 106B of the Evidence Act, having been signed by the advocate rather than the person who took the photographs, and argued that contempt proceedings are quasi-criminal. The court framed one issue: whether the alleged contemnors should be committed for contempt. It held that the advocate who printed the photographs from a properly functioning computer could sign the certificate, satisfying sections 106A and 106B. It further held that the Trustees' failure to file a replying affidavit denying service and denial amounted to admission of the breach. Applying the four elements of civil contempt and the elevated standard of proof, the court found the Trustees in wilful contempt, allowed the application, found all nine Trustees in contempt, directed them to appear for mitigation and sentencing on a date to be fixed, and ordered the Respondent to pay the costs of the application.

Key legal issues

#
01

Admissibility of electronic evidence (photographs) under sections 106A and 106B of the Evidence Act

Holding

The certificate of authenticity signed by the advocate who printed the photographs from a properly functioning computer satisfied sections 106A and 106B of the Evidence Act; the person who prints the record from the computer may sign the certificate.

Reasoning

The court found that the photographs were electronic documents falling within section 106B. The advocate's certificate stated he received the photographs from the Director's cell phone, printed them on a computer operating properly, and without interference. Since the person who signed the certificate was the one who printed the photographs from a functioning computer, the threshold under sections 106A and 106B was met. The Respondent's objection that the certificate should have been signed by the person who took the pictures was rejected.

p. 5
02

Whether the alleged contemnors committed civil contempt of the conservatory orders of 17th September 2021

Holding

The Petitioner proved to the required standard that the Registered Trustees wilfully disobeyed the orders of 17th September 2021.

Reasoning

The orders of 17th September 2021 were clear and were served on the Respondent on the same day, including by email and by being pinned at the entry points of the property. The Trustees did not file any affidavit denying service or denying that they instructed agents to continue construction on 23rd and 25th September 2021. Their silence amounted to admission, which coupled with the photographic evidence established wilful disobedience.

p. 5

Legal principles established

#
  • Four elements must be proved in civil contempt: clear and unambiguous terms of the order binding the respondent, knowledge or proper notice of the terms, breach of the order, and deliberate conduct
  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below proof beyond reasonable doubt
  • Failure to file a replying affidavit to controvert factual depositions amounts to admission of those facts

Court orders

#
  1. 1.Dr. George Kwendo, Hosea Kili, Julius Korir, Matilda Kimetto, John Oscar Juma, Peter Musa Kitesho, Lucy Munjuga, Joseph Kaberia and Winfred Syombua, being the Registered Trustees of the Respondent, were found to be in contempt/disobedience of the orders of the court given on 17th September 2021
  2. 2.The named contemnors to appear in court on a date to be fixed by the court for mitigation and sentencing
  3. 3.The Respondent to pay the costs of the Application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 40, 42, 69, 70
  • Evidence ActSections 2, 78A, 106A, 106B, 106B(2), 106B(3), 106B(4)

Cases cited (4)

  • Sam Nyamweya & Others vs. Kenya Premier League Ltd and Others
    [2015] eKLR
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    [2016] eKLR
  • Katsuri Limited vs. Kapurchand Depar Shah
    [2016] eKLR
  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others
    [2018] eKLR
Jurisdiction invoked
Articles 40, 42, 69 and 70 of the Constitution (environmental and property rights petition); contempt jurisdiction of the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees Ex-parte George Kwendo & 8 others; National Environment Management Authority (Interested Party) [2021] KEELC 510 (KLR)", Case Analysis (2021). ELC Petition No. E033 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/510/eng@2021-12-02

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