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ELCDismissedELC Case of 2015 (contempt application, Notice of Motion dated 16th September 2020)· [2021] KEELC 2936 (KLR)

Peter Migosi Migosi v Diocese of Kisii [2021] KEELC 2936 (KLR)

Environment and Land Court
11 June 2021
JOJ.M ONYANGO
1,796 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 16th September 2020, the Plaintiff sought to cite the Defendant's agent, Pastor Raphael Achira, for contempt of the exparte order issued on 12th May 2020 staying execution of the decree in the judgment of 13th March 2015, and stopping any development of the disputed land LR NO. WEST MUGIRANGO/BOMANONO/1083 pending hearing of the application dated 5th May 2020. The Plaintiff alleged that on 12th September 2020 the agent went to the site with armed police officers and began preparing the ground for development, annexing photographs. The Defendant responded that the youth congregants were merely cleaning the stalled church - clearing grass and debris accumulated during the Covid-19 lockdown - in readiness for a church service, with no building materials on site, and that the armed officer had been brought by the Plaintiff's brother following a complaint. The court framed a sole issue: whether the Respondent's agent should be cited for contempt. Applying section 5 of the Judicature Act and the authorities on the quasi-criminal standard of proof in contempt proceedings, the court held that all four elements of civil contempt must be conclusively proved beyond reasonable doubt. While the clarity of the order and notice were uncontested, the Applicant failed to prove breach: the activities were explained as cleanup for a church service and no evidence of eventual development was tendered. Mere suspicion of development does not meet the threshold. The application was dismissed with no orders as to costs. Dated and delivered at Kisii on 11th June 2021 by J.M Onyango, Judge.

Key legal issues

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01

Whether the Respondent's agent breached the order of 12th May 2020 stopping development on LR NO. WEST MUGIRANGO/BOMANONO/1083, and if so whether the conduct was deliberate

Holding

The application for contempt was dismissed because the Applicant failed to prove breach of the order to the required standard; the activities on the land were a cleanup in readiness for a church service and no evidence of development was tendered.

Reasoning

The court applied the four elements of civil contempt from Samuel M. N. Mweru v National Land Commission, holding that the first two elements (clarity of the order and notice) were not contested, but the Applicant failed to prove breach and deliberateness. Photographs showed youth cleaning the stalled church, and the Respondent explained the presence of the armed officer. No evidence of eventual development was tendered, and mere suspicion does not satisfy the quasi-criminal standard of proof.

p. 3

Legal principles established

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  • Contempt proceedings are quasi-criminal in nature and the standard of proof is higher than on a balance of probabilities, though not exactly beyond reasonable doubt
  • The four essential elements of civil contempt must be conclusively proved, and the requisite elements must be established beyond reasonable doubt
  • The governing law of contempt is the English law applicable in England at the time the contempt was committed, with statutory basis in section 5 of the Judicature Act

Court orders

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  1. 1.The Notice of Motion dated 16th September 2020 seeking to cite the Respondent's agent for contempt is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Judicature ActSection 5

Cases cited (3)

  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
    (2014) eKLR
  • Gatharia K. Mutikika vs Baharini Farm Ltd
    [1985] eKLR
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (power to punish for contempt of court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Migosi Migosi v Diocese of Kisii [2021] KEELC 2936 (KLR)", Case Analysis (2021). ELC Case of 2015 (contempt application, Notice of Motion dated 16th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2936/eng@2021-06-11

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