Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedApplication dated 11.2.2021 (Judicial Review proceedings, Meru ELC)· [2022] KEELC 1965 (KLR)

Republic v County Government of Meru & another Ex parte Applicant Theresa Stephen Kiunga as the Legal Representative of the Estate of Stephen Michuki M’kiunga – Deceased [2022] KEELC 1965 (KLR)

Environment and Land Court
26 January 2022
3,263 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court found Meru county officials in contempt for ignoring a land judgment but deferred their sentencing, allowing the landowner to finally build on her plot.

What this practically means

#

Executive summary

#
The exparte applicant, Theresa Stephen Kiunga, moved the Environment and Land Court at Meru by notice of motion dated 11.2.2021 seeking, among other things, joinder of Elizabeth Mburu, John Ntoiti and Jeremy Lenya as interested parties, punishment of the interested parties for contempt of the judgment dated 20.5.2020, liberty to develop the suit land (Parcel No. Meru Municipality Block II.287) without the respondents' approvals, restraining orders against the respondents, dispensation of third-party consents, and OCS Meru compliance assistance. The respondents and interested parties opposed, arguing functus officio, that the plans were rejected for non-compliance with the Integrated Strategic Urban Development Plan and because a main trunk sewer line traversed the plot, and that the court never directed them to bend the law. Following court directions, the parties recorded a partial consent dated 16.12.2021 under which the building plans were approved, rates and rents arrears of Kshs. 351,000/- were to be paid by 31.1.2022, costs were awarded to the applicant, and only the legality of accrued interests of Kshs. 411,840/- and penalties was left for determination. The interested parties testified orally. The court, applying the Cecil Miller ingredients and the beyond-reasonable-doubt standard, found the orders clear, known to the interested parties, and breached deliberately: they were slow, unwilling and disinterested, never sought review or appeal, and only attempted compliance late. It declined to determine the legality of the interests and penalties, which flowed from the respondents' own dereliction. The court found the application merited in terms of prayer 3, refused the rest, and directed the three interested parties to make mitigation before being sentenced for contempt.

Key legal issues

#
01

Whether the interested parties were in contempt of the judgment of 20.5.2020

Holding

Yes - the interested parties were recalcitrant, adamant and made it difficult or impossible for the orders to be obeyed

Reasoning

The orders were clear, unambiguous and known to the interested parties, who admitted knowledge and that compliance was within their mandate. They made no attempt to seek review, clarification or appeal, waited out the six-month compliance period, and only attempted compliance when the application was filed. Their excuses of physical planning law and policy were spurious and never raised earlier. The consent record showed losses occasioned by their delay.

p. 6
02

Whether the applicant should be allowed to develop the suit land notwithstanding lack of respondents' approvals

Holding

Allowed in terms of prayer 3, following the partial consent approving the building plans

Reasoning

Under the partial consent dated 16.12.2021, the applicant's building plans were approved as per notification dated 15.12.2021 with conditions, and the applicant was to pay rates and rents arrears of Kshs. 351,000/- by 31.1.2022. The court found the application merited in terms of prayer 3.

p. 6
03

Whether the court should determine the legality of the accrued interests and penalties of Kshs. 411,840/-

Holding

Refused; the demand was a consequence of the interested parties' own dereliction

Reasoning

The court declined to entertain the issue left pending in the consent, holding that the respondents wanted the court to determine legality of interests and penalties caused solely by their own acts of omission and commission, which flew against Articles 10 and 232 of the Constitution. The respondents' conduct showed slow, unwilling and disinterested compliance under the Fair Administrative Actions Act.

p. 6

Legal principles established

#
  • The ingredients for contempt must be proved and the threshold is satisfaction beyond any shadow of doubt, since it involves possible deprivation of liberty
  • A party with genuine difficulties in implementing a court order is not to be punished; penal consequences are reserved for truly recalcitrant contemnors
  • Knowledge of an order supersedes personal service where a party clearly acts showing knowledge of the order
  • The mental element for contempt is that the disobeying party either intended to disobey or made no reasonable attempt to comply

Court orders

#
  1. 1.The application is found merited in terms of prayer No. 3 allowing the exparte applicant to develop, build, excavate, deposit building materials, fence, occupy, use and enjoy the suit land
  2. 2.The rest of the prayers are found unmerited and are refused
  3. 3.The three interested parties are directed to make mitigation before being sentenced for contempt of court

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 10(1)
  • Constitution of KenyaArticle 232
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure ActSection 63(e)
  • Environment and Land Court ActSection 29
  • Judicature ActSection 5
  • High Court Organization and Administration ActSection 36(1)
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Magistrate's Courts ActSection 10(3)
  • Physical Planning Act / Physical Planning and Land Use Planning Act
  • Fair Administrative Actions Act
  • Finance Act (County Government of Meru)

Cases cited (11)

  • Cecil Miller –vs- Jackson Njeru & Another
    [2017] eKLR
  • North Tetu Farmers Co. Ltd –vs- Joseph Nderitu Wanjohi
    (2016) eKLR
  • Akber Abdullah Kassam Esmail –vs- Equip Agencies Ltd & 4 others
    [2014] eKLR
  • Econet Wireless Kenya Limited –vs- Minister for Information & Communication of Kenya & another
    [2005] eKLR
  • Samuel M. N. Mweru & others –vs- National Land Commission & 2 others
    JR 443 of 2017 [2020] eKLR
  • Shimmers Plaza –vs- National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos –vs- Attorney General & 13 others
    [2013] eKLR
  • Oilfield Movers Limited –vs- Zahara Oil And Gas Limited
    [2020] eKLR
  • James Wahome Ndegwa –vs- Zachary Mwangi Njeru & 8 Others
    [2021] eKLR
  • Republic –vs- County Secretary, Nairobi City County & another; Ex Parte Applicant: Mohamed Tariq Khan
    [2021] eKLR
  • Henry Musemate Murwa –vs- Francis Owino, Principal Secretary, Ministry of Public Service, Youth & Gender Affairs & another
    [2021] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act; Section 29 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v County Government of Meru & another Ex parte Applicant Theresa Stephen Kiunga as the Legal Representative of the Estate of Stephen Michuki M’kiunga – Deceased [2022] KEELC 1965 (KLR)", Case Analysis (2022). Application dated 11.2.2021 (Judicial Review proceedings, Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1965/eng@2022-01-26

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