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ELCDismissedNot stated in the judgment· [2021] KEELC 4615 (KLR)

Venswa Odunga Okumu v Nicholas Egesa Mayia [2021] KEELC 4615 (KLR)

Environment and Land Court
1 February 2021
AOA. Omollo
852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner failed to win a contempt case because vague accusations without specific evidence of when and how an injunction was breached will be dismissed.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Busia under Order 40 rule 3 seeking to have the respondent, Nicholas Egesa Mayia, cited for contempt of the temporary injunction issued on 12th May 2020, which restrained him from invading, trespassing, ploughing, tilling or destroying crops and trees on L.R No. BUKHAYO/MUNDIKA/10621 pending the hearing of the suit. The applicant sought committal to civil jail for six months and/or a fine of Kshs.100,000, denial of audience until the contempt was purged, and costs. The applicant alleged that despite service of the order, the respondent entered the land, harvested maize and prepared the land for planting. The respondent, in his replying affidavit sworn on 15th October 2020, denied hiring a tractor to plough the land on 22nd August 2020, deposing that the land was fallow and unploughed. The court held that contempt proceedings are quasi-criminal and the disobedience must be proved to a standard higher than the ordinary civil standard, citing Katsuri Limited v Kapurchand Depar Shah and Peter K. Yego v Pauline Nekesa Kode. Applying section 109 of the Evidence Act, the court found the applicant had given no particulars of when the land was ploughed or maize harvested, had not shown that the respondent acted personally or through an agent, and had not demonstrated a change in the status of the land after the order. Leave to file a further affidavit was not utilised. The application was dismissed with costs to the respondent on 1st February 2021.

Key legal issues

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Whether the applicant discharged the burden of proving contempt of the injunction order

Holding

The application was dismissed because the applicant failed to prove that the suit land was ploughed or the maize harvested, or that any such act was done by the respondent or his agent

Reasoning

Contempt is quasi-criminal and disobedience must be proved on strict liability to a standard higher than the civil standard. The applicant gave no particulars of when the land was ploughed or when maize was harvested, did not show the change in the land's status after the order, and did not establish that the respondent acted personally or through an agent. The respondent denied the allegations, deposing that the land was fallow and unploughed. The applicant was granted leave to file a further affidavit but did not. The facts pleaded as contempt were therefore not proved to the required standard.

p. 1

Legal principles established

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  • Contempt proceedings are quasi-criminal and the applicant must prove the alleged disobedience beyond peradventure, to a standard higher than the ordinary civil standard, including that the breach was deliberate or willful
  • 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 application dated 22nd September 2020 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 3
  • Evidence ActSection 109

Cases cited (2)

  • Katsuri Limited Vs Kapurchand Depar Shah
    [2016] eKLR
  • Peter K. Yego & Others vs Pauline Nekesa Kode
Jurisdiction invoked
Order 40 rule 3 of the Civil Procedure Rules and other enabling legislation

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, "Venswa Odunga Okumu v Nicholas Egesa Mayia [2021] KEELC 4615 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4615/eng@2021-02-01

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