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ELCDismissedNotice of Motion dated 25th August 2021 (in ELC suit concerning parcel Nos. 104525, 104524, 3784/4, 7815/1 and 8786)· [2022] KEELC 1784 (KLR)
East African Portland Cement Company Limited v Sammy Kathilu & 49 others [2022] KEELC 1784 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#A Kenyan court refused to jail officials for defying a land injunction because the order served lacked a Penal Notice and contempt was not proven.
What this practically means
#Executive summary
#By a Notice of Motion dated 25th August 2021, the Interested Parties, members of Masua Self Help Group, sought committal to civil jail of Engineer Paul Kamande (Assistant Director, KURA) and the OCS Athi River Police Station for disobeying an ex parte interim injunction issued on 26th July 2021 restraining construction of roads on parcels Nos. 104525, 104524, 3784/4, 7815/1 and 8786, plus an order that the Respondents vacate the suit premises and remove construction materials. The 1st Contemnor responded that KURA was not a party when the order issued, had withdrawn from the land, and had filed an application to set aside the order. The 49th Defendant supported the contempt application. The court framed a single issue: whether the Contemnors were in contempt of the order of 26th July 2021. Relying on North Tetu Farmers, Samuel M. N. Mweru, Mwangi Wang'ondu and Africa Management Communication International, the court held that contempt is criminal in nature, that the applicant must prove the terms of the order, knowledge of it, breach, and wilfulness and bad faith to a standard higher than balance of probabilities. The court found the order was ex parte, the applicants' annexures showed no construction other than a standing iron sheet fence, KURA had entered the land before the order issued, and crucially no Penal Notice accompanied the served order, contravening Section 5(1) of the Judicature Act. The application was dismissed with costs in the cause.
Key legal issues
#01
Whether the Contemnors were in contempt of the ex parte injunction order of 26th July, 2021
Holding
No contempt established; the application was dismissed
Reasoning
The order was ex parte and the contemnors were not parties to the suit when it was issued; the order served carried no Penal Notice as required by Section 5(1) of the Judicature Act; KURA had entered the land on 9th July 2021, before the order; and the annexures showed no ongoing construction, only a standing iron sheet fence. The standard of proof, being higher than balance of probabilities, was not met.
p. 3
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities and almost beyond reasonable doubt
- Failure to attach a Penal Notice to a court order served, as required by Section 5(1) of the Judicature Act, renders a contempt application incompetent
- The elements of civil contempt are: clear and unambiguous terms of the order, knowledge or notice of the terms, breach, and deliberate conduct; the breach must be wilful and mala fide
Court orders
#- 1.The Notice of Motion application dated 25th August 2021 is dismissed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Article 159(2) of the Constitution, Section 1A(3) of the Civil Procedure Act and Section 5(1) and (2) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Portland Cement Company Limited v Sammy Kathilu & 49 others [2022] KEELC 1784 (KLR)", Case Analysis (2022). Notice of Motion dated 25th August 2021 (in ELC suit concerning parcel Nos. 104525, 104524, 3784/4, 7815/1 and 8786). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1784/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.