Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesianntam & 4 others (Interested Parties) [2021] KEELC 1453 (KLR)
The bottom line
#A Kenyan court dismissed a contempt claim because the plaintiffs lacked expert evidence proving the defendant exceeded permitted development acreage.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof in contempt proceedings
Contempt must be proved to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt.
The court adopted the Court of Appeal's formulation in Mutitika v Baharini Farm Limited, holding that although court orders must be obeyed and contemnors punished, no contemnor may be punished until the contempt is proved to the requisite heightened standard. The quasi-criminal nature of contempt means the criminal standard of beyond reasonable doubt is not extended to it.
Whether the Plaintiffs' evidence established breach of the orders restricting the 1st Defendant to 87.5 acres
The contempt was not proved; the court accepted the 1st Defendant's geospatial report showing 82.6 acres under development.
The Plaintiffs proffered only court orders and photographs which did not indicate the size of the developed area, with no surveyor's or expert's report. In the absence of a contrary or more authoritative report, the 1st Defendant's Ramani Geosystems report indicating approximately 82.6 acres was accepted as representing the position on the ground. The court declined to compute acreage arithmetically from turbine counts.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
- The burden of proving contempt lies on the applicant, who must adduce competent evidence, such as an expert's report, to discharge it.
Court orders
#- 1.The Plaintiffs' notice of motion dated 25 April 2018 for contempt against the 1st Defendant is dismissed
- 2.Costs of the application awarded to the 1st Defendant
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21), Order 51 of the Civil Procedure Rules and sections 3, 4(1), 5(b), 27(b), (k), 28, 29 and 30 of the Contempt of Court Act, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesianntam & 4 others (Interested Parties) [2021] KEELC 1453 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1453/eng@2021-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.