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ELCDismissedCivil Suit No 564 of 2013· [2022] KEELC 1717 (KLR)

Julius M Kilinda & 21 others v Phares Mwangi Njoroge & another [2022] KEELC 1717 (KLR)

Environment and Land Court
31 January 2022
EWE. K. Wabwoto
2,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to jail county officials over a 2013 land order because the relevant functions had shifted to Nairobi Metropolitan Services.

What this practically means

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Executive summary

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The Plaintiffs sought committal to civil jail for six months of Charles Kerich, the County Executive Officer of the 2nd Defendant, and Stephen Mwangi, Chief Officer for Lands and Housing, for disobeying orders issued on 1st July 2013 by Justice John Mutungi directing the Surveyor in charge of City Council Housing Development in Dandora to furnish a survey map delineating Plot Nos. 5/258 and 4/313 Soweto Ex Gitau Village Settlement Scheme and file a report within 21 days. The Plaintiffs asserted the orders were served on 3rd July 2013, repeatedly thereafter between 2013 and 2021, and on the Nairobi Metropolitan Services on 20th August 2021, relying on the four elements of civil contempt from Samuel M.N Mweru. The 2nd Defendant opposed, arguing its functions had been transferred to the Nairobi Metropolitan Services under Article 187 of the Constitution, Section 26 of the Intergovernmental Relations Act and a deed of transfer dated 20th February 2020, rendering its enforcement responsibility obsolete, and that the elements of contempt were not proved. The court, E. K. Wabwoto J, reaffirmed the four-element test and the near-criminal standard of proof. It noted the orders' existence and service were undisputed, but observed that the Plaintiffs themselves had served the order on the Nairobi Metropolitan Services in August 2021, and that the 2nd Defendant acknowledged the orders save for the transfer of functions. Holding that committal would be draconian in these peculiar circumstances, the court declined to grant the application, with each party bearing its own costs.

Key legal issues

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01

Whether the elements of civil contempt were established against the named officers of the 2nd Defendant

Holding

The Court found the orders existed and were served, but declined to find contempt because the 2nd Defendant's functions had been transferred to the Nairobi Metropolitan Services

Reasoning

The Court accepted the four-element test for civil contempt. While the orders of 1st July 2013 were not disputed and had been served, the deed of transfer of 20th February 2020 transferred the 2nd Defendant's functions to the Nairobi Metropolitan Services. The Plaintiffs had served the order on the new entity in August 2021. Given the transfer and the live status of the matter, committal would be draconian.

p. 4

Legal principles established

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  • For a party to be cited for contempt, the court order must be clear and unambiguous, duly served on the party, and there must be an act of willful disobedience
  • Contempt is an offence of criminal character requiring proof to a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.The Court declines to grant the orders sought in the Plaintiffs' Application dated 17th September 2021
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 187
  • Intergovernmental Relations ActSection 26

Cases cited (4)

  • Samuel M.N Mweru & Others v National Land Commission & 2 Others
    [2020] eKLR
  • Sam Nyamweya & Others vs. Kenya Premier League Ltd and Others
    [2015] eKLR
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    [2016] eKLR
  • Katsuri Limited vs. Kapurchand Depar Shah
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction; contempt application in a pending land suit

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, "Julius M Kilinda & 21 others v Phares Mwangi Njoroge & another [2022] KEELC 1717 (KLR)", Case Analysis (2022). Civil Suit No 564 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1717/eng@2022-01-31

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