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ELCPartially AllowedMombasa ELC No. 3 of 2007 (JR) - application dated June 20, 2019· [2022] KEELC 3373 (KLR)

Charo v Kilifi Land Registrar & another (Environment and Land Miscellaneous Application 23 of 2019) [2022] KEELC 3373 (KLR)

Environment and Land Court
27 July 2022
NMN.A. MATHEKA
1,027 words in judgment
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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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This was an unopposed application dated June 20, 2019 seeking the committal of the Land Registrar, Kilifi and the Chief Land Registrar to civil jail for not less than twenty-four months for disobeying a consent order dated 21st December 2007 in Mombasa ELC No. 3 of 2007 (JR). The court noted that on May 18, 2018 it had issued orders of mandamus compelling the respondents to register the transfer and discharge of charge and issue a certificate of title to the applicant over Plot No. Chembe/Kibabamshe/364, and that the order had been served on the respondents on May 29, 2018. The application was anchored on section 63(c) of the Civil Procedure Act and Order 40 rule 3(1) of the Civil Procedure Rules. Relying on Teachers Service Commission vs KNUT, the court reiterated that contempt proceedings safeguard the rule of law. Citing the Supreme Court in Republic vs Ahmad Abolfathi Mohammed, which adopted Mutitika v. Baharini Farm Limited, it held that the standard of proof in contempt is higher than the balance of probabilities but lower than beyond reasonable doubt, and that the power to commit must be exercised as a last resort. Finding the application merited, the court declined the immediate 24-month committal sought and instead ordered the respondents to comply with the May 18, 2018 order within 60 days of service, failing which they would be cited for contempt, fined Kshs. 50,000/= each, and in default committed to civil jail for one month each. Costs of the application were awarded to the applicant.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The standard is higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt, because the contemnor's liberty is at stake

Reasoning

Relying on the Supreme Court in Republic vs Ahmad Abolfathi Mohammed and the Court of Appeal in Mutitika v. Baharini Farm Limited, the court held that contempt is quasi-criminal and the heightened standard protects the contemnor's liberty. The power to commit must be exercised with utmost care and only as a last resort.

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02

Duty to obey court orders

Holding

Any person served with or aware of a court order must obey it, and the only remedy for one dissatisfied is to seek variation or setting aside

Reasoning

The court found the consent order of 21st December 2007 and the mandamus order of May 18, 2018 had been served on the respondents, who neither complied nor sought variation or setting aside. The application was unopposed. Disobedience of court orders threatens the rule of law and the administration of justice, warranting enforcement.

p. 3

Legal principles established

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  • All persons served with or aware of a court order have a duty to obey it; the only avenue for a dissatisfied party is to seek variation or setting aside
  • The standard of proof in contempt proceedings is higher than the balance of probabilities but not as high as beyond reasonable doubt

Court orders

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  1. 1.That the respondents comply with the court order issued on May 18, 2018 within 60 days after service of the order, failing which they will be cited for contempt and directed to pay a fine of Kshs. 50,000/= each, and in default each respondent to be committed to civil jail for one month
  2. 2.That costs of the application be paid to the applicant
Jurisdiction invoked
Article 159 of the Constitution; sections 1A, 1B & 3A of the Civil Procedure Act (Cap 21); sections 3 & 14 of the Environment and Land Court Act (No. 19 of 2011); Order 51 rule 1 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, "Charo v Kilifi Land Registrar & another (Environment and Land Miscellaneous Application 23 of 2019) [2022] KEELC 3373 (KLR)", Case Analysis (2022). Mombasa ELC No. 3 of 2007 (JR) - application dated June 20, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3373/eng@2022-07-27

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