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ELCPartially AllowedPetition E033 of 2021· [2022] KEELC 15665 (KLR)

Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party)

Environment and Land Court
6 October 2022
2,762 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court discharged pension trustees from contempt after they removed illegally laid cabro, confirming that genuinely undoing non-compliance can wipe out contempt.

What this practically means

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Executive summary

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The Respondent, Local Authorities Pension Trust Registered Trustees, moved the court by Notice of Motion dated June 23, 2022 seeking a declaration that its nine Trustees had purged contempt of conservatory orders issued on September 17, 2021 restraining works on L.R No 13065, discharge of the Trustees, and termination of the contempt proceedings. The application was supported by an affidavit of CPF Financial Services' Corporate Secretary, who explained that the Trustees were not involved in day-to-day administration and that the contractor had ceased works and removed the cabro. The Petitioner opposed, arguing the application was res judicata the dismissed application of December 9, 2021, an abuse of process, and that the Respondent had only removed cabro while leaving upgraded drainages, loose gravel, foundation rocks and felled indigenous trees. The court framed two issues: competency of the application and whether the contempt had been purged. It held the application was not res judicata because the earlier review application did not decide whether contempt was purged. Comparing the state of the road when the orders were issued with current photographs, the court found the only post-order activity was laying cabro, which had been removed, restoring the status quo. Relying on Rose Detho and Directline Assurance, the court found the contempt purged, discharged the Trustees, and ordered costs in the cause, with the Petition to proceed to hearing on merits.

Key legal issues

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01

Whether the application is res judicata the dismissed application of December 9, 2021

Holding

Not res judicata; the present application requires an evidential inquiry into whether contempt was purged, which was not the question in the earlier review application

Reasoning

The December 9, 2021 application sought review of the contempt finding, which the court declined. The court had held it could not independently interrogate whether contempt was purged in that application. The present motion raises a distinct issue requiring fresh evidence, so the res judicata elements were not conjunctively satisfied.

p. 4
02

Whether the Respondent's Trustees purged the contempt of the September 17, 2021 orders

Holding

Yes. The only post-order activity was laying cabro; the cabro having been removed, the road was restored to its state when the orders were issued

Reasoning

The court compared the position of the road at the time of the orders with photographic evidence of its current state. The Petitioner's own deposition showed grading and gravel-laying were complete before the orders; only cabro-laying occurred after. Removal of the cabro restored the status quo, so the contempt was purged.

p. 5

Legal principles established

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  • Purging contempt means atoning for or wiping out the offence by putting right what the court had ordered to be done, not merely appearing and apologising
  • A court will accept a purge of contempt unless the purging is not genuine, done in bad faith, or is itself a continuation of the original contempt
  • The elements of res judicata must be satisfied in conjunctive, not disjunctive, terms

Court orders

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  1. 1.Finding that Dr George Kwedho, Hosea Kili, Julius Korir, Matilda Kimetto, John Oscar Juma, Peter Musa Kitesho, Lucy Munjuga, Hon Joseph Kaberia and Winfred Syombua have purged the contempt and complied to the fullest possible extent with the Court's Orders delivered on September 17, 2021
  2. 2.Discharge of the Respondent's Trustees from contempt
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 7
  • Constitution of KenyaArticle 159
  • Local Government (Local Authority Pension Trust) Rules2007
  • Retirement Benefits (Administrators) Regulations2007
  • Companies Act

Cases cited (3)

  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR

    Elements of res judicata to be satisfied conjunctively and the rationale of the doctrine

  • Rose Detho vs Ratilal Automobiles Ltd & 6 others
    [2007] eKLR

    Definition of purging contempt - atoning for or putting right what the court ordered

  • Directline Assurance Co Ltd vs Jamii Bora Bank Ltd & 5 others
    (2015) eKLR

    Court's options where a contemnor purges contempt; court will accept a genuine purge

Jurisdiction invoked
Original contempt jurisdiction of the Environment and Land Court over its own orders of September 17, 2021; application brought under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Article 159 of the Constitution

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, "Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party)", Case Analysis (2022). Petition E033 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15665/eng@2022-10-06

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