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ELCDismissed· [2021] KEELC 1453 (KLR)

Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesianntam & 4 others (Interested Parties) [2021] KEELC 1453 (KLR)

Environment and Land Court
19 October 2021
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a contempt claim because the plaintiffs lacked expert evidence proving the defendant exceeded permitted development acreage.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru, delivered on 19 October 2021 by P.M. Njoroge (PJ) with J.G. Kemei and Y.M. Angima (JJ), disposed of the Plaintiffs' notice of motion dated 25 April 2018 seeking punishment of the 1st Defendant and its directors for contempt of orders made on 22 October 2014 and extended thereafter, which restricted the 1st Defendant's project activities to 87.5 acres of the suit property. The Plaintiffs alleged that the 1st Defendant had utilised about 39,912.5 acres, exhibiting court orders and photographs. The 1st Defendant opposed the application through a replying affidavit of Rizwan Fazal and a geospatial report by Ramani Geosystems showing only 82.6 acres under development as at 2017; a preliminary objection on naming of directors was also raised. The court framed a single question: whether the alleged contempt was proved to the required standard. Applying Mutitika v Baharini Farm Limited [1985] KLR 227, it held the standard is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt. Finding the Plaintiffs' evidence insufficient - the photographs did not quantify the developed area and no surveyor's or expert report was tendered - the court accepted the 1st Defendant's geospatial report and declined the Plaintiffs' invitation to calculate acreage from turbine counts. The application was dismissed with costs. An earlier ruling of 21 January 2020 had struck out the 2nd Defendant's out-of-time replying affidavit.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

Contempt must be proved to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt.

Reasoning

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.

p. 2
02

Whether the Plaintiffs' evidence established breach of the orders restricting the 1st Defendant to 87.5 acres

Holding

The contempt was not proved; the court accepted the 1st Defendant's geospatial report showing 82.6 acres under development.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Plaintiffs' notice of motion dated 25 April 2018 for contempt against the 1st Defendant is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)sections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51
  • Contempt of Court Act, 2016sections 3, 4(1), 5(b), 27(b), (k), 28, 29, 30

Cases cited (1)

  • Mutitika v Baharini Farm Limited
    [1985] KLR 227
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

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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, "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.