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ELCDismissedPetitioners' Amended Notice of Motion dated 14th December 2021 (within Petition, ELRC/ELC Machakos)· [2022] KEELC 662 (KLR)

Christopher Musyoka Musau & 2 others v National Land Commission [2022] KEELC 662 (KLR)

Environment and Land Court
28 March 2022
2,589 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 land officials for contempt and refused to order compensation payments, because the landowners couldn't prove orders were served or that compensation was due.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) disposed of the Petitioners' Amended Notice of Motion dated 14th December 2021 in a compulsory land acquisition dispute arising from construction of a highway. The Petitioners sought contempt committal against the National Land Commission's Chairman and CEO and two construction-site officials for allegedly disobeying injunction orders of 13th July 2021 (extended 27th July 2021), and also sought an order compelling payment of what they termed undisputed compensation of Kshs. 226,587,203, Kshs. 5,552,726 and Kshs. 1,425,383 to the three Petitioners. The 1st Respondent denied personal service of the orders and Penal Notice, asserted that road construction was KENHA's mandate, and explained that EACC fraud investigations and a road redesign had led to re-evaluation and revision of the Awards, which the Petitioners had declined to accept. The court, applying the four elements of civil contempt and the beyond-reasonable-doubt standard, found no personal service on the officers, no proof that the site officials were served, unconfirmed interim orders, and no demonstration of wilfulness or mala fides; it also noted the Petitioners had consented to KENHA taking possession. On compensation, Section 115(1)(b) of the Land Act excepts non-consenting owners, so payment must await trial. The application was dismissed with costs in the cause. The substantive Petition on just compensation remains for hearing.

Key legal issues

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01

Whether the named officers should be cited for contempt

Holding

No - personal service of the orders and Penal Notice was not proved to the required standard, and wilfulness and mala fides were not demonstrated

Reasoning

The court found no personal service on the two officers of the 1st Respondent; the process server left the orders at the legal department. There was no confirmation that Mr. Sammy and Mr. Josphat were served or even officials of the contractor. The interim orders were unconfirmed, KENHA (which took possession) was no longer a party, and the Petitioners themselves had consented to KENHA taking possession, undermining candour.

p. 3
02

Whether compensation should be paid pending hearing of the Petition

Holding

No - quantum is disputed and must be determined at the hearing of the Petition with viva voce evidence

Reasoning

The dispute centres on revised Awards following EACC investigations and re-evaluation. Section 115(1)(b) of the Land Act excepts non-consenting owners from the prompt-compensation requirement. The court held the Petitioners must await the Petition's outcome for a proper determination of just compensation.

p. 3
03

Costs of the application

Holding

Costs were made in the cause rather than awarded against either side

Reasoning

Having disallowed the application, the court did not order the Petitioners to pay costs immediately; costs were reserved to the cause.

p. 3

Legal principles established

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  • Four elements must be proved to establish civil contempt: clear and unambiguous terms of the order, knowledge or proper notice, breach, and deliberate conduct, proved to the higher criminal standard
  • The standard of proof in contempt is beyond reasonable doubt, including proof of service and of wilful or intentional disobedience
  • Under Section 115(1)(b) of the Land Act, just and prompt compensation need not be made where the person entitled to the Award does not consent to it

Court orders

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  1. 1.The Petitioners' Amended Notice of Motion application dated 14th December 2021 is unmerited and is disallowed.
  2. 2.Costs will be in the cause.

Authorities

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Legislation

  • Land ActSection 115(1)(b)
  • Environment and Land Court ActSection 29

Cases cited (13)

  • Republic v Ahmad Abolfathi Mohammed & Another
    Cr App, cited in Michael Sistu Mwaura Kamau v Director of Public Prosecutions & 4 Others (2018) eKLR
  • Dr. Fred Matiangi v Miguna Miguna & 4 Others
    Crim App. Nai 1 of 2018 (UR)
  • Shimmers Plaza Ltd v National Bank of Kenya
    (2015) eKLR
  • Amos Mathenge Kabuthu v Simon Peter Mwangi
    (2015) eKLR
  • Jiban Freighters Ltd v Hardware & General Stores Ltd
    (2015) eKLR
  • A. B & Another v R. B
    (2016) eKLR
  • Thomas Kimagut Sambu v National Land Commission & 2 Others
    (2018) eKLR
  • Patrick Musimba v National Land Commission & 4 Others
    (2016) eKLR
  • Cecilia Karuru Ngavu v Barclays Bank of Kenya Ltd & Another
    (2016) eKLR
  • Justus Kariuki Mate v Hon. Martin Nyaga Wambora & Another
    Civil Appeal No. 24 of 2014
  • Ex parte Langley
    1879, 13 Ch D. 110 (C.A) at p. 119
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
  • Augustine Marete Rukunga v Agnes Njeri Ndungire & Anor
    HCCC 2160
Jurisdiction invoked
Environment and Land Court Act, including Section 29 (contempt powers)

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, "Christopher Musyoka Musau & 2 others v National Land Commission [2022] KEELC 662 (KLR)", Case Analysis (2022). Petitioners' Amended Notice of Motion dated 14th December 2021 (within Petition, ELRC/ELC Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/662/eng@2022-03-28

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