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ELCDismissedNotice of Motion dated 12th November 2021 (suit over Land Parcel No. THARAKA/CHIAKARIGA 'A'/1485)· [2022] KEELC 1906 (KLR)

Geoffrey Kiania Kamwara v Mwikamba Kagembe (Environment & Land Case E001 of 2021) [2022] KEELC 1906 (KLR)

Environment and Land Court
31 January 2022
2,897 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 a landowner for contempt because the other side could not prove the specific court orders were actually broken.

What this practically means

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Executive summary

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The Plaintiff/Applicant, claiming adverse possession of land parcel number THARAKA/CHIAKARIGA 'A'/1485, sought contempt orders against the Defendant/Respondent for disobeying orders issued on 18th May 2021 restraining the Respondent from evicting the Applicant from the suit land, demolishing his houses, or dealing with the land pending hearing of the suit. The Applicant alleged that the Respondent hired goons to bar his access, threatened eviction with the assistance of the local administration, cut trees, cleared bush reserved for grazing, and attempted to connect electricity to the land. The Respondent countered that he was the absolute registered owner, that the orders only barred eviction, demolition and registration of dealings, none of which had occurred, and that it was the Applicant who interfered with his quiet enjoyment. The court, Yano J, noted that the Contempt of Court Act had been declared unconstitutional and reverted to the pre-Act law, notably section 5(1) of the Judicature Act as explained in Christine Wangari Gachege. A scene visit by the Deputy Registrar confirmed recent clearing and planting of green grams, but the court found the orders of 18th May 2021 were specific to eviction, demolition and dealings with the land. Since there was no evidence of eviction, demolition or registration of any dealings, and the Applicant failed to prove the breach beyond a shadow of doubt, the application for committal to civil jail was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Respondent disobeyed the orders of 18th May 2021 (injunction against eviction/demolition and order of inhibition)

Holding

No contempt was established: there was no evidence of eviction, demolition or any registration of dealings with the suit land.

Reasoning

The court examined the specific terms of the orders of 18th May 2021, which restrained eviction and demolition and inhibited dealings with the land. A scene visit report by the Deputy Registrar showed recent clearing and planting of green grams, but the orders did not prohibit such activity. Since the Applicant was not evicted, his houses not demolished, and no registration of dealings shown, the specific terms of the orders were not breached.

p. 3
02

Standard and burden of proof in contempt proceedings

Holding

The Applicant must prove beyond a shadow of doubt that the orders were unambiguous, that the Respondent had notice, and that the Respondent violated them; this burden was not discharged.

Reasoning

Because contempt proceedings are quasi-criminal and may result in imprisonment and denial of liberty, the Applicant bears a heavy burden. The Applicant had to show the Respondent was fully aware of the orders and deliberately disobeyed them. The evidence adduced - allegations of threatening eviction, clearing bush, cutting trees and blocking electricity connection - did not establish a violation of the actual terms of the orders of 18th May 2021.

p. 4
03

The legal basis for punishing contempt after the invalidation of the Contempt of Court Act

Holding

The court reverts to the law operative before the Act, including section 5(1) of the Judicature Act and the received English law on committal for contempt, to avoid a lacuna.

Reasoning

The Contempt of Court Act was declared unconstitutional in Kenya Human Rights Commission v Attorney General. Following the Court of Appeal's decision in Christine Wangari Gachege, the English law on committal for contempt under Rule 81.4 of the English Civil Procedure Rules applies by virtue of section 5(1) of the Judicature Act, since the High Court retains responsibility for maintenance of the rule of law and there can be no gap in its application.

p. 3

Legal principles established

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  • An applicant in contempt proceedings bears the burden of proving that the terms of the order were clear and unambiguous, that the contemnor had notice, and that the terms were violated
  • The court will only punish for contempt where the terms of the order are clear and unambiguous and the contemnor had proper notice, and where breach is proved
  • Following the invalidation of the Contempt of Court Act, courts revert to the pre-Act law to avoid a lacuna in enforcement of court orders

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 12th November, 2021 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Civil Procedure RulesOrder 39 Rule 2(3)
  • Judicature Act (Cap 8)Section 5(1)
  • Contempt of Court Act
  • English Civil Procedure RulesRule 81.4

Cases cited (9)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    (2005) KLR 828
  • Ochino & Another vs Okombo & 4 others
    (1989) eKLR
  • Mwangi Mangondu vs Nirobi City Commission
    Civil Appeal No.95 of 1988
  • JGK vs FWK
    (2019) eKLR
  • Katsuri Limited v Kapurchand
    (2016) eKLR
  • Samwel M.N. Mweru & Others v National Land Commission & 2 others
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Republic v Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya
    HCMCA No. 13 of 2008
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act (Cap 8) and Order 40 Rule 3(1) of the Civil Procedure Rules, applied through the common law jurisdiction over contempt

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, "Geoffrey Kiania Kamwara v Mwikamba Kagembe (Environment & Land Case E001 of 2021) [2022] KEELC 1906 (KLR)", Case Analysis (2022). Notice of Motion dated 12th November 2021 (suit over Land Parcel No. THARAKA/CHIAKARIGA 'A'/1485). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1906/eng@2022-01-31

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