Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (ELC suit, Malindi)· [2022] KEELC 2102 (KLR)

Kibwana Hamadi & 291 others v John Kimogut Kiptoo & another [2022] KEELC 2102 (KLR)

Environment and Land Court
20 January 2022
3,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Malindi court refused to punish land disputants for contempt because the applicant couldn't prove they wilfully disobeyed the order.

What this practically means

#

Executive summary

#
The 1st Defendant moved the Environment and Land Court at Malindi by Notice of Motion dated 10th August 2021 seeking to have ten named Plaintiffs cited for contempt of the status quo orders issued on 3rd June 2021, committed to jail or fined, and to have those orders set aside. He alleged that on 30th June 2021 the Plaintiffs cleared bushes on the suit property, title CR 64260 Plot No. 9911/III/MN, with intent to build. The Plaintiffs opposed, contending the application was res judicata, that the order only prohibited sale and subdivision, and that contempt had not been proved to the higher standard applicable to quasi-criminal committal proceedings. The court framed three issues. On res judicata, it found the contempt question had not been previously determined, so the application was not barred; the Deputy Registrar's report of 5th July 2021 did not form part of the record having been expunged by order of 29th July 2021. On contempt, the court held the 3rd June 2021 order was clear and unambiguous and both parties were aware of it, but the applicant failed to prove willful disobedience: the photographs did not show cleared bushes, the expunged report could not be relied on, and status quo operates both ways, with the respondents' photographs showing the applicant constructing a fence. The court declined to set aside the status quo orders, which remain in place to preserve the substratum of the suit, and directed that the main suit be heard on priority basis. The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Res judicata

Holding

A contempt application is not res judicata merely because earlier rulings addressed the injunction and expunged the Deputy Registrar's report

Reasoning

The court applied section 7 of the Civil Procedure Act and the five-element test in Invesco Assurance. The ruling of 3rd June 2021 dealt with the injunction and the orders of 29th July 2021 with the ex parte orders and report; neither finally determined the question of contempt. The Deputy Registrar's report no longer forms part of the record having been expunged.

p. 4
02

Whether the Plaintiffs were in contempt of the status quo order of 3rd June 2021

Holding

No contempt proved; the applicant failed to establish willful disobedience

Reasoning

The order was clear and unambiguous and the parties were aware of it, but the onus was on the applicant to prove willful disobedience. The photographs did not show cleared bushes, and the Deputy Registrar's report could not be relied on as it had been expunged from the record. Status quo applies to both parties, and the respondents' photographs showed a fence under construction.

p. 5
03

Whether the status quo orders of 3rd June 2021 should be set aside

Holding

The orders should remain in place to preserve the substratum of the suit

Reasoning

Having found no contempt, the court declined to vacate the status quo orders, noting that the case had been stalled by multiplicity of applications and directing the main suit be heard on priority basis.

p. 5

Legal principles established

#
  • For contempt of court proceedings to succeed, the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure to comply
  • Status quo means the state of affairs prevailing at the time the order was made, and applies to both parties
  • The standard of proof in committal proceedings is higher than a balance of probabilities though below proof beyond reasonable doubt

Court orders

#
  1. 1.The application is dismissed
  2. 2.Each party to bear their own costs
  3. 3.The order of status quo issued on 3rd June 2021 remains in place pending the hearing and determination of the suit
  4. 4.The main suit to be heard on priority basis

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40 Rule 2(2)
  • Civil Procedure RulesOrder 21(1)
  • Judicature ActSection 5
  • Environment and Land Court ActSection 29

Cases cited (17)

  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    (2015) eKLR
  • Republic V Kiambu County Registrar & 3 Others ex parte Stephen Wanyoike Kinuthia
    (2016) eKLR
  • Republic vs. Kenya School of Law & 2 Others Ex Parte Juliet Wanjiru Njoroge & 5 Others
    (2015) eKLR
  • Mwangi v John Waweru Muriuki & 3 others
    [2020] eKLR
  • Rufus Muriithi Nyaga V Rebecca Magwi Njeru
    (2018) eKLR
  • IEBC v Maina Kiai & 5 others
    [2017] eKLR
  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    [2021] eKLR
  • Carey v Laiken
    2015 SCC 17
  • Pyaralalmhandbheru Rajput v Barclays Bank and others Civil Case No. 38 of 2004
  • Beta Healthcare International Limited v Grace Mumbi Githaiga & 2 others
    [2016] eKLR
  • Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another (Interested Parties)
    [2020] eKLR
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Jihan Freighters Ltd v. Hardware & General Stores Ltd
  • A.B. & Another v. R. B.
    [2016] eKLR
  • Mutitika v. Baharini Farm
  • Republic v Ahmad Abolfathi Mohammed & Another
  • Kristen Carla Burchell vs Barry Grant Burchell
    Eastern Cape Division Case No. 364 of 2005
Jurisdiction invoked
Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act, 2011; Section 63 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibwana Hamadi & 291 others v John Kimogut Kiptoo & another [2022] KEELC 2102 (KLR)", Case Analysis (2022). Not stated in judgment (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2102/eng@2022-01-20

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