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ELCDismissedEnvironment & Land Case 27 of 2020· [2022] KEELC 14764 (KLR)

Enaso Ene Parisue Malei & another (suing on behalf of the estate of Oltokokoi Merit Katiyu (deceased)) v Joseph Bradley Waweru Gitari and 168 others

Environment and Land Court
16 November 2022
MGM N Gicheru
1,203 words in judgment
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The bottom line

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A Kenyan court refused to jail land parties for disobeying orders because the applicants couldn't prove service, knowledge, and actual breach.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (M N Gicheru, J) determines a notice of motion dated April 8, 2022 in which the 1st, 2nd, 3rd and 4th defendants to the counterclaim sought to have the plaintiffs committed to civil jail for six months for contempt of the orders issued on October 8, 2020, which restrained the respondents from entering upon, trespassing on, constructing on, or interfering with the suit parcels Kajiado/Kaputiei-North/43967 and Kajiado/Kaputiei-North/64760-65103 pending hearing of the suit and counterclaim. The applicants alleged continued fencing, tree-cutting, erection of structures, farming and threats by the plaintiffs and their agents. The first plaintiff denied destruction, noting the land was open grazing land with no improvements. The court confirmed its power to punish for contempt under section 29 of the Environment and Land Court Act and set out the three elements of contempt (terms of the order, knowledge, and non-compliance), the requirement of personal service, and the heightened standard of proof leaving no doubt as to culpability. The application failed: the supporting affidavit did not name the alleged agents or confirm service, gave no dates of disobedience or documentary proof of damage, and the October 8, 2020 order was prohibitory rather than mandatory, so occupation alone was not breach. The motion was dismissed, with a caution that respondents in occupation must not improve the land or threaten the applicants, and directions to fix a date for the defendants' case.

Key legal issues

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01

Whether contempt was proved against the plaintiffs and 1st to 4th defendants to the counterclaim

Holding

Contempt was not proved; the application failed on the elements of contempt, personal service and standard of proof

Reasoning

The supporting affidavit alleged acts by unnamed relatives, agents and assignees without stating whether they were served with the orders. The deponent did not commit on the dates of disobedience or produce documentary evidence of damage. It was also unclear whether the plaintiffs were already in occupation when the prohibitory (non-mandatory) orders of October 8, 2020 were issued, so no eviction could be inferred or enforced.

p. 3
02

Nature of the order of October 8, 2020

Holding

The order was prohibitory, not mandatory; it did not require eviction of persons already in occupation

Reasoning

The court observed that the October 8, 2020 order restrained interference with the defendants' proprietary rights pending hearing, but did not direct eviction. Since it was not mandatory in nature, occupation per se could not constitute breach, particularly where the plaintiffs may have been in occupation before the order was made.

p. 3

Legal principles established

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  • Three elements must be proved in contempt proceedings: terms of the order, knowledge of the terms by the respondent, and failure to comply
  • Personal service of orders is a requirement in contempt of court proceedings
  • The standard of proof in contempt is higher than in civil cases; culpability must be established beyond evidentiary doubt
  • The Environment and Land Court has power to punish for contempt under section 29 of the Environment and Land Court Act

Court orders

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  1. 1.The notice of motion dated April 8, 2022 is dismissed
  2. 2.If the respondents are in occupation, they should not carry out any improvements on the land and must not threaten the applicants
  3. 3.Directions that a date be fixed for the defendants' case as the matter is partly heard

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23(3)(b) and (c), 40, 162(2)(b), 259(1)
  • Environment and Land Court ActSections 13(7)(a), (b), 14, 29
  • National Police Service ActSection 24
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (3)

  • Charity Mpano Ntiyione v China Communications Construction Company Limited and NEMA
    [2017] eKLR

    Three elements to be proved in contempt proceedings

  • Nyamodi Ochieng Nyamogo and another v Kenya Post and Telecommunications Corporation
    [1994] eKLR

    Personal service of orders is a requirement in contempt proceedings

  • Mwangi HC Wangondu v Nairobi City Commission
    Civil Appeal No 95 of 1998

    Higher threshold of proof in contempt; culpability must leave no doubt

Jurisdiction invoked
Articles 22, 23(3)(b) and (c), 40, 162(2)(b) and 259(1) of the Constitution; sections 13(7)(a), (b) and 14 of the Environment and Land Court Act; sections 24 of National Police Service Act; sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 rule 1 of the Civil Procedure Rules

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, "Enaso Ene Parisue Malei & another (suing on behalf of the estate of Oltokokoi Merit Katiyu (deceased)) v Joseph Bradley Waweru Gitari and 168 others", Case Analysis (2022). Environment & Land Case 27 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14764/eng@2022-11-16

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