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)
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
#Key legal issues
#Admissibility of electronic evidence (photographs) under sections 106A and 106B of the Evidence Act
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.
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.
Whether the alleged contemnors committed civil contempt of the conservatory orders of 17th September 2021
The Petitioner proved to the required standard that the Registered Trustees wilfully disobeyed the orders of 17th September 2021.
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.
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.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.The named contemnors to appear in court on a date to be fixed by the court for mitigation and sentencing
- 3.The Respondent to pay the costs of the Application
- 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.