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ELCPartially AllowedEnvironment and Land Appeal E009 of 2021· [2022] KEELC 14895 (KLR)

Mwirikia v Nyambura

Environment and Land Court
17 November 2022
YAY. M. Angima
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court freed a man from civil jail for contempt because the process server's affidavit of service was never properly sworn, though the underlying land case continues.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyahururu against a ruling of Hon. Daffline N. Sure (SPM) in Engineer PM ELC No. 11 of 2020, which had dismissed the Appellant's application challenging the trial court's jurisdiction and seeking to set aside an ex parte interim injunction, and had allowed the Respondent's application committing the Appellant and co-defendants to civil jail for contempt. Y. M. Angima, J framed three issues. On jurisdiction, the court held there was no evidence the dispute was a boundary dispute under Section 18(2) of the Land Registration Act: the plaint pleaded trespass, and the Appellant's replying affidavit never asserted a boundary dispute, so the trial court rightly assumed jurisdiction. On service of the injunction application, the court found the Appellant was duly served - he had sworn a replying affidavit before the ex parte hearing - and, having failed to apply to cross-examine the process server, could not impugn the affidavit of service; the date error in the extracted order was a non-prejudicial clerical error. However, on contempt, the court found the process server's affidavit of service of the injunction order was neither sworn nor commissioned as required by Section 5 of the Oaths and Statutory Declarations Act, and since contempt must be proved above a balance of probabilities (Mutitika v Baharini Farm Ltd), the committal order was set aside for all defendants. The appeal partly succeeded; the jurisdiction ruling was affirmed, the committal order set aside, there was no order as to costs, the record was to be remitted for trial, and the trial court was to correct errors in the extracted order.

Key legal issues

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01

Whether the dispute was a boundary dispute ousting the trial court's jurisdiction under Section 18 of the Land Registration Act

Holding

No; there was no evidence of a boundary dispute, so the trial court had jurisdiction

Reasoning

The plaint pleaded trespass by the Appellant and co-defendants after the death of the registered proprietor, with particulars of entry, cutting trees, destroying the fence and threatening to graze animals. The Appellant's replying affidavit denied trespass and questioned the title but never swore that the dispute was a boundary dispute. Section 18(2) bars court action on boundary disputes only where such a dispute exists.

p. 5
02

Whether the trial court erred in refusing to set aside the ex parte interim injunction

Holding

No; the Appellant was duly served and did not seek cross-examination of the process server

Reasoning

There was an affidavit of service sworn on September 8, 2020, and the Appellant had sworn a replying affidavit on September 7, 2020, indicating awareness of the application. Under the presumption of service, the burden lay on the party questioning service, and the Appellant never applied to cross-examine the process server as INM v AJMN and the cited authorities require. The date error in the extracted order was a clerical error causing no prejudice.

p. 5
03

Whether the committal of the Appellant to civil jail for contempt was justified

Holding

No; the affidavit of service of the injunction order was unsworn and uncommissioned, fatal to the contempt application

Reasoning

The affidavit of service sworn by process server Patrick Mutisya on October 12, 2020 was not signed or stamped by a Commissioner for Oaths or Magistrate as required by Section 5 of the Oaths and Statutory Declarations Act. Contempt must be proved to a standard higher than balance of probabilities (Mutitika v Baharini Farm Ltd), a standard unattainable without a sworn affidavit of service. The committal order was therefore set aside.

p. 6
04

Costs of the appeal

Holding

No order as to costs, since the Appellant partly succeeded and partly failed

Reasoning

Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, and a successful party should ordinarily get costs unless the court directs otherwise for good reason (Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd). Given the mixed outcome, no order as to costs was appropriate.

p. 6

Legal principles established

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  • Service of an order alleged to have been disobeyed in contempt proceedings can only be proved by a sworn affidavit of service, not a draft or uncommissioned affidavit
  • Contempt of court must be proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt
  • A party disputing service must apply to cross-examine the process server; absent contest, the process server's affidavit is sufficient evidence of service
  • The court cannot entertain boundary disputes over registered land unless boundaries have been determined under Section 18 of the Land Registration Act

Court orders

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  1. 1.The trial court's order dismissing the Appellant's notice of motion dated January 19, 2021 is upheld and affirmed
  2. 2.The trial court's order allowing the Respondent's notice of motion dated November 25, 2020 for committal of the Appellant to civil jail is set aside, applying to all the defendants in Engineer PMELC No. 11 of 2020
  3. 3.There shall be no order as to costs of the appeal
  4. 4.The Deputy Registrar shall remit the original record to the trial court within 14 days for trial and disposal of the pending suit
  5. 5.The trial court shall correct the errors in the extracted order as indicated in the judgment

Authorities

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Legislation

  • Land Registration ActSection 18 (including 18(2))
  • Oaths and Statutory Declarations Act (Cap 15)Section 5
  • Civil Procedure Act (Cap 21)Section 27 (proviso)
  • Civil Procedure RulesOrder 5 Rule 16
  • Survey Act (Cap 299)Section 19(3) reference

Cases cited (5)

  • INM –vs- AJMN
    [2022] eKLR

    Need to cross-examine a process server whose affidavit of service is doubted; rectification via Order 5 Rule 16

  • Agigreen Consulting Corp Ltd –vs- National Irrigation Board
    (2020) eKLR

    Endorsing the requirement of cross-examination of the process server where service is denied

  • Shadrack Arap Baiywo –vs- Bodi Bach
    KSM CA Civil Appeal No 122 of 1986 [1987] eKLR

    Presumption of service from process server's report; burden on party questioning it

  • Mutitika –vs- Baharini Farm Ltd
    [1985] eKLR

    Standard of proof in contempt: higher than balance of probabilities, lower than beyond reasonable doubt

  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co Ltd
    [1967] EA 287

    Costs follow the event; successful party ordinarily awarded costs

On appeal from
Magistrates' Court at Engineer (Senior Principal Magistrate)
Engineer PM ELC No. 11 of 2020
Jurisdiction invoked
First appellate jurisdiction over the ruling and order of the Senior Principal Magistrate in Engineer PM ELC No. 11 of 2020

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, "Mwirikia v Nyambura", Case Analysis (2022). Environment and Land Appeal E009 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14895/eng@2022-11-17

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