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ELCDismissedNot stated in extract· [2022] KEELC 3586 (KLR)

Kamau v Wachira & 2 others (Environment and Land Case Civil Suit 642 of 2011) [2022] KEELC 3586 (KLR)

Environment and Land Court
7 July 2022
3,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to punish defendants for ignoring orders because the plaintiff's evidence was too weak to prove contempt.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court, Nairobi (S. Okong'o, J) determines a notice of motion dated March 15, 2019 by which the plaintiff sought a finding that the 1st and 2nd defendants were in contempt of the judgment and orders of May 3, 2018, in which the court had declared the 1st defendant's fencing of the common area/parking illegal and the 2nd defendant's metal gate illegal, and had issued permanent and mandatory injunctions requiring demolition of the structures within 60 days. The plaintiff alleged the defendants refused to comply and that the 1st defendant had erected further structures, relying on photographs. The 1st defendant denied breach and relied on photographs showing he had pulled down the wall; the 2nd defendant showed the gate had been removed, which the plaintiff conceded, though after filing of the application. The court restated the law on contempt from Hardkinson v Hardkinson, Mutitika v Baharini Farm Ltd and Micheal Sistu Mwaura Kamau: court orders must be obeyed, contempt requires wilful and deliberate disobedience of a clear order known to the contemnor, and the standard of proof is higher than balance of probabilities though not beyond reasonable doubt. Holding that the plaintiff's blurred black and white photographs had no probative value, the court found the plaintiff had not discharged the burden of proving disobedience. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff proved contempt of the orders of May 3, 2018

Holding

No - the plaintiff failed to meet the elevated standard of proof of contempt

Reasoning

The court accepted that orders were made and known to the defendants, and that compliance was disputed. The burden lay on the plaintiff to prove disobedience to a standard higher than balance of probabilities, almost but not beyond reasonable doubt. The plaintiff's evidence consisted of blurred black and white photographs with no probative value, while the 1st defendant's photographs showed the wall brought down and the 2nd defendant had removed her gate, which the plaintiff conceded. The application therefore failed.

p. 6
02

The applicable principles for committal for contempt

Holding

The court applied Hardkinson, Mutitika v Baharini Farm and Micheal Sistu Mwaura Kamau: obligation to obey court orders; wilful disobedience; clarity of the order; and the elevated standard of proof

Reasoning

The court restated the settled principles: every person against whom a court order is made must obey it unless discharged; a person who knowingly and wilfully breaches an order is liable to committal; the order must be clear and precise; and contempt must be proved to a standard higher than balance of probabilities, with the jurisdiction exercised cautiously.

p. 6

Legal principles established

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  • To commit a person for contempt, the court must be satisfied of wilful and deliberate disobedience of a clear and precise order known to the contemnor, proved to a standard higher than balance of probabilities

Court orders

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  1. 1.The plaintiff's notice of motion dated March 15, 2019 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Contempt of Court Actsection 4

Cases cited (6)

  • Hardkinson v Hardkinson
    [1952] ALL ER 567
  • Mutitika v Baharini Farm Ltd
    [1985] KLR 227
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Republic v Ahmad Abolfathi Mohammed & another
  • Jihan Freighters Ltd v Hardware & General Stores Ltd
  • A.B. & another v R.B.
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court in the suit; contempt application arising from the court's judgment of May 3, 2018

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, "Kamau v Wachira & 2 others (Environment and Land Case Civil Suit 642 of 2011) [2022] KEELC 3586 (KLR)", Case Analysis (2022). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3586/eng@2022-07-07

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