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ELCPartially AllowedNot stated in the judgment (notice of motion dated November 12, 2021 within a petition concerning plot No 444 Kiboko B settlement scheme)· [2022] KEELC 3868 (KLR)

Mutisya alias Lazaro & another v District Land Registrar, Makueni County & 4 others (Environment & Land Petition E003 of 2021) [2022] KEELC 3868 (KLR)

Environment and Land Court
27 July 2022
2,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court found a landowner guilty of contempt for ploughing land under a court order, with sentencing to follow.

What this practically means

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Executive summary

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The petitioners/applicants moved the court by notice of motion dated November 12, 2021, seeking that Brian Mutie Mutinda, the 4th respondent, be cited for contempt and committed to civil jail for six months for disobeying conservatory orders issued on May 17, 2021, which restrained the respondents from interfering with the petitioners' possession, occupation, use and quiet enjoyment of plot No 444 Kiboko B settlement scheme pending the hearing of the petition. The applicants also sought injunctions and police enforcement. The applicants alleged that despite service of the order on the respondent's counsel on May 18, 2021, the respondent, in the company of armed goons, ploughed the suit land using tractors. The respondent opposed the application, asserting he was the registered owner of the plot, that the applicants had trespassed on two acres, that the order did not restrain him from cultivating his own portion, and that the ploughing was done by his wife in his absence without any intent to disobey. The court framed the issues of clarity of the order, notice, and deliberate breach. Relying on Econet Wireless, Mweru v National Land Commission, and Mutitika v Baharini Farm, the court applied the standard of proof higher than balance of probabilities but short of beyond reasonable doubt. It found the order clear and unambiguous, that the respondent was aware of it, and that the photographs and the respondent's own admission established ploughing of the suit land while the order subsisted. The court found the 4th respondent in wilful contempt and directed him to appear for sentencing and/or sanctions on an agreed date, deferring the committal and other sanctions.

Key legal issues

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01

Whether the terms of the May 17, 2021 conservatory order were clear and unambiguous

Holding

The court found the order clear, restraining respondents from interfering with the petitioners' possession of plot No 444 Kiboko B settlement scheme in its entirety.

Reasoning

The court reproduced the terms of the conservatory order issued pursuant to the application dated April 9, 2021. It noted that the order restrained the respondents from verifying and marking boundaries, repossessing, allocating, transferring, evicting or in any other way interfering with the petitioners' possession, occupation, use and quiet enjoyment of plot No 444. The court held the order was unambiguous as to both the parcel number and the restraint imposed, satisfying the first element of civil contempt.

p. 4
02

Whether the 4th respondent had knowledge of or proper notice of the order

Holding

The respondent was aware of the order; his counsel was served on May 18, 2021, and he admitted awareness in his replying affidavit.

Reasoning

The applicant averred that the respondent's counsel was served with the order on May 18, 2021, which was not disputed. Although the respondent said he was not personally served, he admitted in his replying affidavit that he was aware of the order. The court was satisfied that the respondent knew the terms of the order, satisfying the second element of contempt.

p. 4
03

Whether the 4th respondent wilfully and deliberately breached the order

Holding

Yes - the respondent ploughed the suit land while the order subsisted and had not been set aside, despite being aware of it.

Reasoning

The applicant annexed photographs showing men and a tractor at work on the ploughed suit land, which the court examined. The respondent admitted the land was ploughed by his wife, contending it was not perceived as contempt. Applying the quasi-criminal standard of proof, the court found the respondent aware of the unexpired order and concluded he wilfully and deliberately defied it; an order cannot be ignored merely because a party disagrees with its contents.

p. 6

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on a balance of probabilities but not exactly beyond reasonable doubt
  • The elements of civil contempt are: clear and unambiguous order binding on the defendant; knowledge or notice of the terms; breach of the terms; and deliberate conduct
  • Court orders must be obeyed regardless of whether a party agrees with their contents

Court orders

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  1. 1.Finding that the 4th respondent is in contempt of the court orders issued on May 17, 2021
  2. 2.Direction that the 4th respondent appear before the court on an agreed date for sentencing and/or sanctions

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • High Court Organization and Administration General Rules 2016Rule 39
  • Civil Procedure RulesOrder 40 rule 3(1)
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land Court ActSection 29

Cases cited (9)

  • Dunstan Mutuku Wambua v Glory Rent a Car Ltd
    (2017) eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    (2005) eKLR
  • Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No 364 of 2005
  • Samuel M N Mweru & others v National Land Commission & 2 others
    (2020) eKLR
  • Gatharia K Mutitika v Baharini Farm Ltd
    (1985) KLR
  • Peter K Yego & others v Pauline Wekesa Kode
    ACC No 194 of 2014
  • Mutitika v Baharini Farm Ltd
    (1985) eKLR
  • Commercial Bank of Africa Ltd v Ndiragu
    (1992) KLR
Jurisdiction invoked
Section 5(1) of the Judicature Act; order 40 rule 3(1) of the Civil Procedure Rules; section 29 of the Environment and Land Court Act (cited by applicant)

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, "Mutisya alias Lazaro & another v District Land Registrar, Makueni County & 4 others (Environment & Land Petition E003 of 2021) [2022] KEELC 3868 (KLR)", Case Analysis (2022). Not stated in the judgment (notice of motion dated November 12, 2021 within a petition concerning plot No 444 Kiboko B settlement scheme). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3868/eng@2022-07-27

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