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ELCDismissedNotice of Motion dated 21/9/2020 (in the main suit, ELC Kitale)· [2021] KEELC 3490 (KLR)

Martin Macharia v Peterson Njoroge & 2 others;Joseph Maritim & 2 others (Interested Parties) [2021] KEELC 3490 (KLR)

Environment and Land Court
3 May 2021
2,234 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail people for breaking a court order they were never served with or bound by.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determined the plaintiff's Notice of Motion dated 21 September 2020 seeking leave to institute contempt proceedings, a notice to show cause, and the committal of the 1st, 2nd and 3rd interested parties to civil jail for up to six months for disobeying a temporary injunction issued on 14 November 2018 restraining the 1st and 2nd defendants from interfering with LR No. Kitale Municipality Block 2/Tuwan/2756 pending the hearing of the suit. The 1st interested party, Joseph Maritim, opposed the application through a replying affidavit denying trespass, agency with the 1st defendant, and any knowledge or service of the order. The court set out the four elements of civil contempt from the case law: clear and unambiguous terms of the order binding on the party; knowledge or notice; breach; and deliberate conduct, all to be proved beyond reasonable doubt given the quasi-criminal nature of contempt. It found the order clear and unambiguous but directed only to the 1st and 2nd defendants; the interested parties were enjoined to the suit only on 29 October 2020, after the order had issued. No agency relationship with the 1st defendant was proved, the denial shifting the burden to the applicant. No affidavit of service was filed, and the photographs relied on could not establish deliberate breach of an order unknown to the parties. The application was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Whether the order of 14/11/2018 was binding on the interested parties

Holding

The order was directed to and binding only on the 1st and 2nd defendants; the interested parties were not parties to the suit when it issued and no agency relationship was proved.

Reasoning

The order issued on 14/11/2018 restrained the 1st and 2nd defendants and their agents. The interested parties were only enjoined on 29/10/2020, after the order was in place. The applicant alleged they were agents of the 1st defendant but produced no evidence of an agency or employment relationship; the 1st interested party's sworn denial shifted the evidential burden to the applicant, which was never discharged.

p. 3
02

Whether the interested parties had knowledge or proper notice of the order

Holding

They had no knowledge of the order and the applicant failed to prove service on them.

Reasoning

The interested parties were not parties when the order issued and were unaware of it. Even on the applicant's own agency theory, he was obliged to serve the order on them; no affidavit of service was filed. The court held that service must be effected upon an individual, not the whole world, and concluded the interested parties had no knowledge of the order.

p. 3
03

Whether the interested parties acted in deliberate breach of the order

Holding

No breach or deliberate conduct was established since the order was not binding on or known to them.

Reasoning

The applicant relied on photographs allegedly showing holes dug for fencing, but because the order was neither directed to nor known by the interested parties, the alleged activities could not constitute deliberate breach. The allegations were found baseless and the contempt application failed in its entirety.

p. 4

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order binding on the defendant; knowledge or proper notice of the order; breach of the order; and deliberate conduct.
  • Standard of proof in contempt proceedings is beyond reasonable doubt because contempt is of a criminal nature and involves loss of liberty.
  • A person affected by a court order is bound to obey it unless and until it is discharged, even if they believe it irregular or void.
  • Where a denial of agency is raised, the burden shifts to the applicant to prove the agency relationship; it cannot be presumed.

Court orders

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  1. 1.The application dated 21/9/2020 is dismissed in its entirety
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrders 1, 40, 51 Rule 1
  • Civil Procedure ActSections 3 and 3A
  • The Judicature ActCap 8
  • Environment and Land Court ActSection 29
  • Evidence ActSection 107

Cases cited (5)

  • HADKINSON -vs- HADKINSON
    (1952) 2 All ER 567
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    [2016] eKLR
  • James Gachiri Mwangi V John Waweru Muriuki & 3 Others
    [2020] eKLR
  • Kasembeli Sanane Vs Manhu Muli alias Fredrick Saname & 4 Others
    (2013) eKLR
  • Njuguna Holdings Limited v Tana Mining Company Limited
    (2015) eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Order 1, 40, 51 Rule 1 of the Civil Procedure Rules; Sections 3 and 3A of the Civil Procedure Act; Judicature Act Cap 8

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, "Martin Macharia v Peterson Njoroge & 2 others;Joseph Maritim & 2 others (Interested Parties) [2021] KEELC 3490 (KLR)", Case Analysis (2021). Notice of Motion dated 21/9/2020 (in the main suit, ELC Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3490/eng@2021-05-03

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