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ELCDismissedMachakos ELC Case No. 131 of 2015· [2022] KEELC 2061 (KLR)

Joshua Mutua Kithiuma v Angelina Mutheu Mutua [2022] KEELC 2061 (KLR)

Environment and Land Court
19 January 2022
2,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to jail a landowner for contempt because the orders only required the other party to act, and the evidence was too weak.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitui determines the Plaintiff's Notice of Motion dated 12th November 2019, brought under Order 22 Rule 28(1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking the Defendant's committal to civil jail for up to six months for disobeying court orders issued on 26th September 2017, or in the alternative attachment of her property, and enforcement of orders requiring collection of rent from plot Yatta B2/Kwa Vonza/930. The suit originated from a plaint filed in 2015 seeking a permanent injunction and special damages. An interim injunction had been granted, and the Defendant had previously been found guilty of contempt and fined Kshs 50,000. The court applied the four elements of civil contempt from Katsuri Ltd v Kapurchand Depar Shah and the quasi-criminal standard of proof in Mutitika v Bahanini Farm Ltd. It found the orders of 22nd September 2017 were directed at the Plaintiff, not the Defendant, who was not required to do or refrain from anything. The allegations that the Defendant collected rent and threatened tenants were unsubstantiated, the photographs were unreliable, and the business on the premises was being run by the parties' daughters. The Plaintiff failed to prove contempt to the required standard, and the application was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the orders of 22nd September 2017 were clear and directed at the Defendant

Holding

The orders were clear and unambiguous but directed at the Plaintiff, requiring him to collect rent and restraining him from alienating the land; the Defendant was not required to do or refrain from anything

Reasoning

The court read the orders literally and found they imposed obligations only on the Plaintiff. Since the Defendant was not directed to refrain from entering the premises, any breach by her could not found a contempt claim based on those orders.

p. 3
02

Whether the Plaintiff proved the alleged contempt to the required standard

Holding

The Plaintiff failed to discharge the burden; the accusations of collecting rent and threatening tenants were unsubstantiated and the photographs were of doubtful authenticity

Reasoning

The court found the rent-collection allegation unsubstantiated, noted the police reports did not result in charges, and disbelieved the photographs because the telephone used was admittedly faulty as to the time shown. The persons on the premises were found to be the parties' daughters. The quasi-criminal standard of proof was not met.

p. 3
03

Whether the Defendant had knowledge of the orders

Holding

Although service of the order was not proved, the Defendant's earlier conviction for contempt meant she had knowledge of the orders

Reasoning

The Plaintiff did not adduce proof of service, but the court took judicial notice of the earlier contempt application in which the Defendant had been found guilty and fined Kshs 50,000, and inferred knowledge on that basis.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on a balance of probability, almost but not exactly beyond reasonable doubt, because contempt is quasi-criminal
  • Four elements must be proved for civil contempt: clear and unambiguous binding terms, knowledge or notice of the order, breach, and deliberate conduct
  • Where a party against whom a decree for specific performance or injunction has been passed wilfully fails to obey it, the decree may be enforced by detention in prison or attachment of property

Court orders

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  1. 1.The application dated 12th November 2019 is dismissed with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 22 Rule 28(1)
  • Civil Procedure Rules 2010Order 40 Rule 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Evidence ActSections 106A and 106B

Cases cited (2)

  • Katsuri Ltd. –vs- Kapurchand Depar Shah
    (2016) eKLR
  • Mutitika –vs- Bahanini Farm Ltd.
    (1985) KLR 229
Jurisdiction invoked
Order 22 Rule 28(1) of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Mutua Kithiuma v Angelina Mutheu Mutua [2022] KEELC 2061 (KLR)", Case Analysis (2022). Machakos ELC Case No. 131 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2061/eng@2022-01-19

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