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ELCDismissedNot stated in the judgment (summons for contempt of court order, Kisumu)· [2021] KEELC 4604 (KLR)

Joanes Ondego Oywech v Alex Omondi Ogola [2021] KEELC 4604 (KLR)

Environment and Land Court
21 January 2021
AOANTONY OMBWAYO
565 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a contempt claim because the applicant offered no actual evidence the court order was breached—proof matters more than allegations.

What this practically means

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Executive summary

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The applicant, Joanes Ondego Olweny, brought summons for contempt of court against the respondent, Alex Omondi Ogolla, seeking his committal to civil jail. The application was founded on interim orders issued on 2 September 2020 restraining the respondent from interfering with the applicant's side of parcel Kisumu/Kanyawegi/4646 pending hearing and determination of an application. The applicant alleged that despite the orders having been extracted and served, the respondent pulled down his fence, destroyed vegetation and was cultivating the applicant's side of the land. The respondent filed grounds of opposition describing the application as vexatious, lacking merit and an abuse of court process. The court set out the applicable legal framework: section 109 of the Evidence Act places the burden of proving a particular fact on the person who wishes the court to believe in its existence, and the Supreme Court in Republic v Ahmad Abolfathi Mohammed, citing Mutitika v Baharini Farm Limited, established that the standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, because committal to jail affects the contemnor's liberty. The power to commit must be exercised with utmost care and only as a last resort, requiring proof that the conduct was deliberate and wilful. Holding that the applicant bore only an evidentiary burden to show some scintilla of the contemptuous activities, and finding that the applicant had exhibited no evidence of a destroyed fence, destroyed vegetation or ploughing of the suit land, the judge found the application to lack substance and dismissed it with costs. Judgment was delivered electronically at Kisumu on 21 January 2021.

Key legal issues

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Whether the applicant proved contempt of the court order to the required standard

Holding

The application was dismissed because the applicant failed to discharge the evidentiary burden of showing any evidence of the contemptuous activities alleged

Reasoning

The court adopted the standard of proof in contempt that is higher than the balance of probabilities, as laid down in Mutitika v Baharini Farm Limited and restated by the Supreme Court. Because committal to civil jail affects the contemnor's liberty, the power must be exercised as a last resort and only where the breach was deliberate and wilful. The applicant bore the evidentiary burden under section 109 of the Evidence Act to show at least a scintilla of evidence of the alleged acts. Having considered the application, the supporting affidavit and the respondent's response, the court found no evidence of a destroyed fence, destroyed vegetation or ploughing of the suit land, and therefore dismissed the application.

p. 1

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on the balance of probabilities, almost but not exactly beyond reasonable doubt
  • The power to commit a person to civil jail must be exercised with utmost care and only as a last resort, requiring proof that the contemnor's breach was deliberate and wilful
  • Under section 109 of the Evidence Act, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence

Court orders

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  1. 1.The applicant's application for contempt of court order is dismissed with costs

Authorities

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Legislation

  • Evidence ActSection 109

Cases cited (2)

  • Republic -V- Ahmad Abolfathi Mohammed & Another
  • Mutitika v. Baharini Farm Limited
    [1985] KLR 229, 234
Jurisdiction invoked
Summons for contempt of a court order issued by this court on 2/9/2020 restraining interference with Kisumu/Kanyawegi/4646

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, "Joanes Ondego Oywech v Alex Omondi Ogola [2021] KEELC 4604 (KLR)", Case Analysis (2021). Not stated in the judgment (summons for contempt of court order, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4604/eng@2021-01-21

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