Ndugo v Ntikaya Enterprises Limited (Environment & Land Case 1124 of 2014) [2022] KEELC 32 (KLR)
The bottom line
#A Kenyan court found a company in contempt for ignoring an order to transfer land, but chose mitigation over jail for its director.
What this practically means
#Executive summary
#Key legal issues
#Whether the application contravened Section 5 of the Judicature Act and was fatally defective
The court rejected the contention, finding the Section merely confers jurisdiction to punish for contempt and the objection as to lack of particularity would be considered within the merits.
The court found the Defendant's contention that the application violated Section 5 of the Judicature Act unclear, since that Section simply provides that the High Court and Court of Appeal have the same power to punish for contempt as the High Court of Justice in England. The question of whether the alleged acts of contempt were specifically laid out would be addressed in the substantive determination.
Whether the Defendant is in contempt of the orders of 30th May, 2019
Yes - the Defendant was in contempt of the order to transfer the suit property, having taken no step towards compliance and having annexed irrelevant documents.
The terms of the judgment were clear, the Defendant admitted knowledge, and the court found no evidence of any step taken towards sub-division or transfer. The document adduced as a 'surrender form' was dated 2nd February, 2010 and related to change of user, pre-dating the orders and being irrelevant. The Defendant could not blame the Ministry of Lands without evidence of initiating the sub-division process.
Whether the Defendant was in contempt of the injunctive orders
No finding of contempt on the injunction was made because the alleged interference was not particularised or proved.
Although the Plaintiff alleged continued harassment and interference with quiet possession, the court noted that neither the nature nor the form of the interference was stated and no evidence was adduced. Given the quasi-criminal nature of contempt and the elevated standard of proof, the court declined to find contempt on the injunctive limb.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities but below the criminal standard of proof beyond reasonable doubt.
- To succeed in civil contempt, the applicant must prove clear and unambiguous terms of the order, knowledge, breach, and deliberate conduct.
- Following the invalidation of the Contempt of Court Act, 2016, contempt proceedings revert to the Judicature Act.
Court orders
#- 1.An order be and is hereby issued for James Waithaka Chege, the Defendant's Director, to appear before this court for mitigation.
- 2.The Plaintiff shall have the costs of the application.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules, 2010; Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndugo v Ntikaya Enterprises Limited (Environment & Land Case 1124 of 2014) [2022] KEELC 32 (KLR)", Case Analysis (2022). Notice of Motion dated 24th March, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/32/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.