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ELCDismissedNot stated in the judgment excerpt· [2021] KEELC 900 (KLR)

Joel Motaroki Ombogi v Chami Simuyu & another [2021] KEELC 900 (KLR)

Environment and Land Court
17 November 2021
LMLucy N. Mbugua
1,304 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a contempt claim because the plaintiff couldn't prove the defendant deliberately disobeyed court orders.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court by Notice of Motion dated 13th April 2021 seeking a declaration that the 1st defendant was in contempt of orders issued on 14th May 2018 restraining dealings on the suit property (Nairobi/Block 136/12441, Ruai), committal to civil jail, attachment of the defendant's property, fresh restraining orders, and enforcement by the OCS Ruai. The plaintiff alleged the defendant continued constructing structures on the suit property in disregard of the orders. The 1st defendant filed a preliminary objection and replying affidavit denying contempt, explaining that he had only trimmed an overgrown perimeter fence for security, annexing photographic evidence, and accusing the plaintiff of unclean hands for attempting to process title documents in November 2019. The plaintiff relied on Carey v Laiken, Katsuri Limited, Samuel M. N. Mweru, B v Attorney General and Mutitika v Baharini Farm. The 1st defendant filed no submissions. The court framed three issues: contempt, punishment, and restraining orders. Applying the test that contempt requires a deliberate and mala fide breach, and that committal must rest on incontrovertible facts, the court found the plaintiff had not refuted the defendant's explanation of fence trimming, and noted the house predated the initial 2017 application and that the plaintiff never sought verification of the ground status when the 2018 ruling issued. The restraining orders sought replicated relief declined on 9.3.2018. The application was dismissed with no orders as to costs, and parties were directed to prepare for trial fixed for 14.2.2022.

Key legal issues

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01

Whether the 1st defendant was in contempt of the orders of 14th May 2018

Holding

No contempt established; the alleged construction was trimming of an overgrown fence, and the plaintiff did not refute the photographic evidence

Reasoning

The court applied the test that disobedience constitutes contempt only where the breach was deliberate and mala fide; good faith avoids the infraction. The defendant explained he trimmed an overgrown perimeter fence for security and annexed photographs of cut twigs/branches, which the plaintiff did not refute. The house had existed before suit, and the plaintiff sought no status-quo verification when the 2018 ruling issued.

p. 2
02

Whether restraining orders should issue

Holding

Refused; the sought orders were the same as those declined on 9.3.2018

Reasoning

Prayers 2 and 3 replicated orders the plaintiff had sought in his application of 6.2.2017, which the court declined in its ruling of 9.3.2018. Re-litigating the same relief was not entertained.

p. 2

Legal principles established

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  • Contempt punishable by committal to civil jail must be established on incontrovertible facts of deliberate, wilful breach; a genuine, non-mala fide act avoids the infraction

Court orders

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  1. 1.The application dated 13.4.2021 is dismissed with no orders as to costs
  2. 2.Parties should hasten to prepare for the trial scheduled on 14.2.2022

Authorities

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Legislation

  • Judicature Actsection 5(1)

Cases cited (6)

  • Carey v Laiken
    2015 SCC 17
  • Katsuri Limited v Kapurchand Depor Shah
    [2016] eKLR
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • B v Attorney General
    (2004)
  • Mutitika v Baharini Farm Limited
    (1985) eKLR
  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
Jurisdiction invoked
Power to punish for contempt under section 5(1) of the Judicature Act

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, "Joel Motaroki Ombogi v Chami Simuyu & another [2021] KEELC 900 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/900/eng@2021-11-17

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