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ELCDismissedKapsabet SPMCC 166 of 2005 (Appeal)· [2021] KEELC 1523 (KLR)

Ainea Kisala v Elam Kisala [2021] KEELC 1523 (KLR)

Environment and Land Court
18 October 2021
MMM.N. Mwanyale
1,607 words in judgment
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The bottom line

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A Kenyan land court refused to punish a man for contempt because the applicant couldn't prove, to the required high standard, that he disobeyed court orders.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet (M.N. Mwanyale, J) determined a Notice of Motion dated 19.4.2021 in which the Appellant/Applicant sought to have the Respondent cited for contempt of court and committed to imprisonment for six months and/or fined Kshs. 300,000 for breaching two interim orders. The first, dated 14.10.2020, stayed execution of a judgment of 10.12.2018 in Kapsabet SPMCC 166 of 2005 and restrained the Respondent from altering the status of land parcel Nandi/Koibarak'A'/469, including by selling, leasing, charging, ploughing or cutting down trees, pending the appeal. The second, dated 23.6.2021, temporarily stopped the burial of the late Truphosa Adema Elam on the suit land for five days. The Applicant alleged the Respondent cut trees and ploughed on the suit parcel on various dates and buried his late wife on it. The Respondent denied breaching the orders, asserting the burial took place on his parcel Nandi/Koibarak'A'/811, which he claimed was a first registration distinct from parcel 469, and denied the photographs of tree-cutting depicted the suit property. The court adopted the settled three-limb test for contempt and found the orders were capable of obedience and that the Respondent knew of them, since knowledge supersedes personal service and he was represented by counsel. However, on breach, the court held the burial occurred on parcel 811, distinct from 469, leaving the question of identity of parcels to the main appeal, and that tree-cutting on parcel 469 was not proved to the heightened standard applicable in contempt proceedings. The application was disallowed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent breached the orders of 14.10.2020 and 23.6.2021

Holding

The Respondent was not in contempt; burial occurred on a distinct parcel (Nandi/Koibarak'A'/811) and cutting of trees on parcel 469 was not proved to the required standard

Reasoning

The injunction of 14.10.2020 prohibited specific acts on Nandi/Koibarak'A'/469 only. The Respondent admitted burying his late wife but on parcel 811, which the court found to be a first registration distinct from 469, the identity question being left to the main appeal. On tree-cutting and ploughing, the Respondent denied the photographs were from the suit property and the Applicant did not respond to that denial in a supplementary affidavit. Given the heightened standard of proof in contempt proceedings, breach was not proved.

p. 3
02

Whether the Respondent had knowledge of the orders despite any lapse in personal service

Holding

Knowledge of a court order supersedes the need for proof of personal service; the Respondent, being represented by counsel, was aware of the orders

Reasoning

The court accepted that the test for knowledge has evolved from personal service to actual knowledge of the orders' existence, adopting the Basil Criticos position. The Applicant deponed that the Respondent was personally served with the applications and resultant orders, and the Respondent was represented by counsel, so the knowledge limb of the contempt principles was satisfied.

p. 2

Legal principles established

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  • For a person to be held in contempt there must be an order capable of being obeyed or disobeyed, knowledge of that order by the offending party, and a breach of the order
  • Knowledge of a court order supersedes the requirement of personal service
  • The standard of proof in contempt and committal proceedings is higher than a balance of probabilities though below proof beyond reasonable doubt

Court orders

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  1. 1.The Notice of Motion application dated 19.4.2021 is disallowed
  2. 2.Each party to bear its own costs

Authorities

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Cases cited (7)

  • Shimmers Plaza Limited vs NBK
    EKLR
  • Basil Criticos vs Attorney General & 8 others
  • Jihan Freighters ltd vs Hardware and General Stores ltd
  • In AB and ANOTHER VS R.B
    2016 eKLR
  • Kristen Carla Burchell v Barry Grant Burchell
    Case No 364 of 2005
  • Katsuri Limited v Kapurchand Depor Shah
    [2016] eKLR
  • Mutitika vs Baharini Farm
    NAI.CIV APPLICATION NO.24 of 1985
On appeal from
Kapsabet Principal Magistrate's Court
Kapsabet SPMCC 166 of 2005
Jurisdiction invoked
Contempt jurisdiction of the Environment and Land Court over breach of its interim orders issued pending appeal

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, "Ainea Kisala v Elam Kisala [2021] KEELC 1523 (KLR)", Case Analysis (2021). Kapsabet SPMCC 166 of 2005 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1523/eng@2021-10-18

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