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ELCDismissed· [2022] KEELC 3087 (KLR)

Impact Chemicals Limited v County Government of Kisumu & another; Kenya Commercial Bank Ltd (Interested Party) (Environment & Land Case E003 of 2021) [2022] KEELC 3087 (KLR)

Environment and Land Court
22 July 2022
AOAntony Ombwayo
2,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kisumu court refused to punish county officials for contempt because the court order they allegedly breached was ambiguously drafted and unclear.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Kisumu by notice of application dated 23/2/2022 seeking to cite and punish the County Secretary and/or City Manager of the County Government of Kisumu for disobeying a temporary injunction order issued on September 9, 2021 following a ruling of September 3, 2021 in the main suit concerning Kisumu Municipality/Block 13/107 and 13/109. The applicant sought committal for up to six months, warrants of arrest, or in the alternative sequestration of the respondents' properties, plus costs. The respondents, through an affidavit of Valentine Oiro, denied interference with the suit property, asserted lack of personal service, and maintained that the construction on the land was the County Assembly of Kisumu project under the control of the Speaker, Clerk and County Assembly Service Board, entities not party to the suit. The respondent also argued the applicant was uncertain of the suit property's location. Justice Antony Ombwayo found that although the court had granted a temporary injunction as prayed, the order extracted by the applicant was ambiguous and did not clearly reflect the court's order, requiring resort to the proceedings to discern it. Restating the quasi-criminal standard of proof in contempt and the requirement of service and personal knowledge, the court declined to punish the County Secretary and City Manager. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the ambiguity of the extracted order defeats a contempt application

Holding

Yes; the extracted order did not clearly reflect the court's order, so no punishment could issue

Reasoning

The court had granted temporary injunction as prayed in the application, but the plaintiff extracted an order that did not match the prayers as granted. The extracted order was unclear and one had to revert to the proceedings to discern the court's order. Because contempt is quasi-criminal, punishment requires a clear and unambiguous order personally known to the contemnor; ambiguity is fatal.

p. 5
02

Standard of proof in contempt proceedings

Holding

Contempt is criminal in nature; the applicant must prove wilful and deliberate disobedience beyond balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Relying on Gatharia K. Mutikika v Baharini Farm Limited, the court restated that contempt of court is an offence of criminal character since liberty of the subject is at stake, and the guilt must be proved with strictness consistent with the gravity of the charge, with the jurisdiction exercised with greatest reluctance.

p. 5
03

Whether the respondents carried out the alleged activities on the suit property

Holding

The respondents denied interfering with the suit property, asserting the construction was by the County Assembly of Kisumu, which is not a party to the suit

Reasoning

The 1st respondent's surveyor swore that the respondent was not served personally, had not interfered with the suit property, and that the development was the County Assembly of Kisumu project controlled by the Speaker, Clerk and County Assembly Service Board under the County Assembly Services Act. The applicant also conceded uncertainty about the exact location of the suit land.

p. 3

Legal principles established

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  • A court cannot punish a party or person for contempt where the extracted order is ambiguous
  • Contempt requires proof of wilful and deliberate disobedience to a standard higher than balance of probabilities
  • The order must be served and the person cited must have personal knowledge of it

Court orders

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  1. 1.The application for contempt was not allowed
  2. 2.Costs to the 1st respondent

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure Rules (2010)Order 40 rule (3)
  • Constitution of Kenya 2010Articles 177 and 178
  • County Assembly Services Act No. 17 of 2012Sections 12, Part III, Part V

Cases cited (3)

  • Inconet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR 828
  • T. N. Gadavarman Thiru Mulpad v Ashok Khot and anor
    [2006] 5 SCC
  • Gatharia K. Mutikika v Baharini Farm Limited
    [1985] KLR 227
Jurisdiction invoked
Section 5 of the Judicature Act and Order 40 rule (3) of the Civil Procedure Rules (2010)

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, "Impact Chemicals Limited v County Government of Kisumu & another; Kenya Commercial Bank Ltd (Interested Party) (Environment & Land Case E003 of 2021) [2022] KEELC 3087 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3087/eng@2022-07-22

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