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ELCDismissedBusia ELC contempt application dated 12/3/2020 (suit over L.R Nos. Bukhayo/Buyofu/2017 and 141)· [2021] KEELC 4225 (KLR)

Okello Wandera Kubiri & another v Jonathan Juma & 2 others [2021] KEELC 4225 (KLR)

Environment and Land Court
25 February 2021
AOA. Omollo
1,284 words in judgment
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The bottom line

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A Kenyan landowner seeking to jail someone for defying a court order must prove exactly who did what, on which parcel of land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Busia (A. Omollo, J) on the applicants' notice of motion dated 12/3/2020 brought under Order 40 rule 3, seeking arrest warrants and committal of the respondents to civil jail for six months or a fine for defying a temporary injunction issued on 17th April 2018 restraining them from entering, developing or cultivating L.R Nos. Bukhayo/Buyofu/2017 and 141. The applicants deposed that the order was served on 20/4/2018 and that the respondents, despite a letter from their advocate dated 30/5/2018 and a letter from the area Chief dated 11th September 2018, continued to cultivate the suit parcels. The respondents, through the replying affidavit of Jonathan Juma, denied service and any breach, maintaining that they farm their ancestral parcel No. Bukhayo/Buyofu/139, which lies between the two suit parcels and is not claimed by the applicants. The court held that contempt proceedings are quasi-criminal and require proof higher than the balance of probabilities, applying Mutitika v Baharini Farm Ltd. Service was proved, but the alleged breach was not: the applicants' letters were general, failing to identify which defendant cultivated which parcel, while the respondents' farming of parcel 139 was not within the order. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the respondents were served with and aware of the injunction order

Holding

Service was proved. Although the respondents denied service, they did not challenge the process server's evidence as to where, how and when service occurred.

Reasoning

The order was made in the absence of the respondents and their advocate on 9/4/2018, so service of the order was essential to found contempt. The applicants produced an affidavit of service (OWK-2) confirming service on 20/4/2018. The respondents' bare denial, without addressing the circumstances of service, did not displace that evidence. The court was therefore satisfied the order was served on the respondents.

p. 2
02

Whether the applicants proved disobedience of the injunction order

Holding

Disobedience was not proved. The applicants' evidence was general and failed to particularise which defendant cultivated which of the two suit parcels.

Reasoning

Contempt is quasi-criminal and demands proof above the balance of probabilities. The burden rested on the applicants. The respondents deponed that they farm their own ancestral parcel No. 139, which lies between the two suit parcels and is not claimed by the applicants. The applicants' advocate's letter referenced only the 1st defendant without specifying the parcel, and the Chief's letter did not identify which defendants cultivated which parcel. Such generalised accusations did not meet the required standard.

p. 3

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.
  • An application for committal for breach of an injunction must specify precisely what each defendant is alleged to have done in breach of the order.
  • General accusations against multiple defendants relating to multiple parcels of land do not constitute sufficient proof in contempt proceedings.

Court orders

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  1. 1.The motion dated 12/3/2020 be and is hereby dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 3

Cases cited (2)

  • Mutitika Vs Baharini Farm Ltd
    (1985) KLR 229
  • Alkens Connections Ltd Vs Safaricom Ltd & 2 others
    (2013) eKLR
Jurisdiction invoked
Order 40 rule 3 of the Civil Procedure Rules (application for committal for disobedience of an injunction order)

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, "Okello Wandera Kubiri & another v Jonathan Juma & 2 others [2021] KEELC 4225 (KLR)", Case Analysis (2021). Busia ELC contempt application dated 12/3/2020 (suit over L.R Nos. Bukhayo/Buyofu/2017 and 141). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4225/eng@2021-02-25

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