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ELCDismissedELC Case No. 25 of 2020 (Formerly Kerugoya ELC No. 41 of 2020)· [2021] KEELC 2409 (KLR)

Mary Wangui Njagi v Nancy Wanjira Njagi & 2 others [2021] KEELC 2409 (KLR)

Environment and Land Court
11 June 2021
ECE.C. Cherono
3,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's contempt case failed because she couldn't prove the other side broke a court order beyond reasonable doubt.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) determines a Notice of Motion dated 29th October 2020 in which the Applicant sought committal of the 2nd/3rd Defendant/Respondent to civil jail for six months for disobeying interim injunction orders issued on 18th September 2020, which restrained eviction of the Applicant and interference with land parcel KABARE/GACHIGI/2380 for 90 days. The Applicant alleged that workers she sent to pick tea on the suit land were chased away by the Respondent. The Respondent opposed, contending he was the registered proprietor under a decree in Kerugoya ELC No. 23 of 2020, that no formal order or notice of penal consequences was ever served on him, and that the Applicant had casually presented the breach allegations without identifying the alleged workers. The Court analysed the applicable law on contempt, holding that since the Contempt of Court Act 2016 was declared unconstitutional, section 5 of the Judicature Act (incorporating English contempt law) continues to apply. The Court accepted that knowledge of a court order can dispense with personal service, but stressed that contempt must be proved beyond reasonable doubt given that liberty is at stake. The Applicant failed to identify the alleged workers, produce their affidavits, or specify the date, time and place of the alleged breach, and therefore failed to discharge the burden of proof. The application was dismissed with costs to the 3rd Respondent. The Court also lamented the absence of comprehensive local contempt legislation and urged Parliament to legislate.

Key legal issues

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01

Whether knowledge of a court order dispenses with the requirement of personal service of the order and penal notice in contempt proceedings

Holding

Personal service of the order and penal notice is not an invariable precondition; actual knowledge of the order, whether through counsel present in court or otherwise, suffices to found liability in contempt.

Reasoning

The Court traced the jurisprudence from Christine Wangari Gachege, Shimmers Plaza, and Basil Criticos, noting that Kenyan courts have moved from the strict personal service requirement to a knowledge-based approach, in line with Rule 81.8 of the English Civil Procedure Rules and Canadian authority. The Court nonetheless emphasised that knowledge must be proved beyond reasonable doubt.

p. 4
02

Whether the Applicant proved that the 3rd Respondent breached the interim injunction orders of 18th September 2020

Holding

The Applicant failed to discharge the burden of proof to the criminal standard; the alleged acts of breach were not substantiated.

Reasoning

The Applicant alleged that workers sent to pick tea were chased away but did not disclose the identity of those workers, nor the date, time and place of the incident, and none of them swore affidavits. The orders of 18th September 2020 restrained eviction and interference with the suit land, and the Applicant did not prove the alleged disobedience beyond reasonable doubt.

p. 5

Legal principles established

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  • The Contempt of Court Act 2016 having been declared unconstitutional, section 5 of the Judicature Act was never validly repealed and continues to govern contempt proceedings in Kenya.
  • Proof of the alleged contempt must be established beyond reasonable doubt given the penal nature of contempt proceedings and the liberty of the subject at stake.
  • The burden of proving contempt lies on the applicant and does not shift to the respondent.

Court orders

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  1. 1.The Notice of Motion dated 29th October 2020 is dismissed
  2. 2.Costs of the application are awarded to the 3rd Respondent

Authorities

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Legislation

  • The Judicature Act (Cap 46)Section 5(1)
  • The Judicature Act (Cap 46)Section 3
  • The Contempt of Court Act, 2016Section 38 (repeal of section 5 of the Judicature Act) - Act declared invalid
  • Evidence Act (Cap 80)Section 107
  • English Civil Procedure RulesRule 81.4 and Rule 81.8

Cases cited (8)

  • Christine Wangari Gachege -VS- Elizabeth Wanjiru Evans & 11 others
    (2014) eKLR
  • Patrick Wanyonyi Munialo -VS- County Executive Committee (CEC) member for Water & National Resources Bungoma County & 3 others; Nzoia Water Services Co. Ltd (interested party); Kennedy Kilali Wekesa & 2 others (contemnors)
    (2019) eKLR
  • Shimmers Plaza Limited V National Bank of Kenya Ltd
    (2015) eKLR
  • Justus Kariuki Mate and another -VS- Hon. Martin Wambora (Wambora Case)
  • Basil Criticos vs Attorney General and 8 others
    (2012) eKLR
  • Ex parte Langley
    1879 13 CHD 110 (C.A)
  • Bhatanger Vs Canada (Minister of Employment and Immigration)
    (1990) 2 S.C.R. 217
  • Avery Vs Andrews
    (1882) 51 L.J Ch 414
Jurisdiction invoked
Section 5 of the Judicature Act (Cap 46) as read with Rule 81 of the English Civil Procedure Rules

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, "Mary Wangui Njagi v Nancy Wanjira Njagi & 2 others [2021] KEELC 2409 (KLR)", Case Analysis (2021). ELC Case No. 25 of 2020 (Formerly Kerugoya ELC No. 41 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2409/eng@2021-06-11

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