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ELCDismissedNotice of Motion dated 21st June 2021 (in the appeal from Nyeri CMCLE Case No. 106 of 2018)· [2022] KEELC 3318 (KLR)

Waigwa & another v Waigwa (Environment and Land Appeal 32 of 2019) [2022] KEELC 3318 (KLR)

Environment and Land Court
16 June 2022
JOJ. O. Olola
1,316 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants, Lawrence Mwangi Waigua and Peter Munya Waigwa, moved the Environment and Land Court at Nyeri by Notice of Motion dated 21st June 2021 seeking to have Mary Gathoni Waigwa, their mother, cited for contempt of consent orders made on 13th February 2020 by Justice M.C. Oundo. Those orders, made in a pending appeal against a judgment of the Chief Magistrates' Court at Nyeri in CMCLE Case No. 106 of 2018, stayed execution and required the status quo to be maintained pending the hearing of the appeal. The Applicants alleged that on 6th April 2021 the Respondent entered the suit parcels Iriaini/Kairia/2243 and 2244, cut down mature avocado trees and uprooted others, uprooted bean crops on 21st April 2021, and on 10th June 2021 destroyed the hedge fence and threatened farm workers. The Respondent filed no response. The court held that contempt is criminal in nature and requires proof of wilful and deliberate disobedience to a standard above balance of probabilities since liberty is at stake. The Applicants' own averments were uncertain whether the Respondent or undisclosed agents committed the acts, there was no eyewitness, and the Respondent, aged over 80, could not plausibly have done the acts alone. Further, the orders of 13th February 2020 related to cancellation of the titles, not use of the land. The application was dismissed with no order as to costs, and the family was exhorted to resolve the dispute amicably.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The Applicants had to prove wilful and deliberate disobedience to a standard higher than balance of probabilities because liberty is at stake

Reasoning

The court characterized contempt as criminal in nature; the averments themselves showed uncertainty as to whether the Respondent or her alleged agents committed the acts, with no eyewitness and no disclosed agents. The elderly Respondent was also unlikely to have personally cut trees and destroyed the fence.

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02

Scope of the order allegedly breached

Holding

The consent order of 13th February 2020 concerned cancellation of title and maintenance of status quo pending appeal, not the use of the land; the alleged acts did not breach it

Reasoning

The court held the contempt application could only succeed if the Respondent had disregarded the orders by procuring cancellation and registration of the titles in her name. The acts of cutting trees and uprooting crops fell outside the order's scope.

p. 3

Legal principles established

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  • Contempt proceedings are criminal in nature and require proof beyond a balance of probabilities, including wilful and deliberate disobedience of the order
  • Contempt can only be founded on breach of the actual terms of the order relied upon

Court orders

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  1. 1.The Notice of Motion dated 21st June 2021 is dismissed
  2. 2.Parties exhorted to resolve the dispute amicably as a family
  3. 3.No order as to costs
On appeal from
Chief Magistrates Court, Nyeri
CMCLE Case No. 106 of 2018
Jurisdiction invoked
Appellate jurisdiction over the Chief Magistrates' Court in land and environment matters (Environment and Land Court Act)

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, "Waigwa & another v Waigwa (Environment and Land Appeal 32 of 2019) [2022] KEELC 3318 (KLR)", Case Analysis (2022). Notice of Motion dated 21st June 2021 (in the appeal from Nyeri CMCLE Case No. 106 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3318/eng@2022-06-16

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