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ELCDismissedNakuru ELC No 206 of 2014 (contempt application dated January 31, 2022)· [2023] KEELC 549 (KLR)

Trimborn Agricultural Engineering Limited v Mwangi & 2 others (Environment & Land Case 206 of 2014) [2023] KEELC 549 (KLR)

Environment and Land Court
7 February 2023
3,125 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail the Nakuru Land Registrar for contempt because the company could not prove he knowingly and deliberately ignored its orders.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge, J) determined the plaintiff's notice of motion dated January 31, 2022 seeking committal of the Land Registrar, Nakuru (Eric Munene Nyamu) to civil jail for contempt of the orders of September 18, 2019, issued by consent and adopted as judgment on July 23, 2019 in Nakuru ELC No 206 of 2014, which directed the Land Registrar to rectify the registers for Nakuru Municipality Block 4/296 and 4/297 by deleting the names of the 1st and 2nd defendants and re-inserting the plaintiff. The plaintiff alleged that instead the Land Registrar registered the properties in favour of Isaac Kipng'etich Arap Langat, a non-party, in willful defiance of the order. The Land Registrar countered that the lease documents originated from the Ministry of Lands in Nairobi and were registered before the order was booked for registration; that the order was inconsistent with registry records; and that compliance was impossible since neither the plaintiff nor the defendants appeared in the original registry records. The court applied section 5 of the Judicature Act and the standard of proof in contempt authorities, holding that contempt must be proved with strictness proportionate to the gravity of the charge. It found no affidavit of service of the order on the Land Registrar before the impugned registration, both parties admitting service occurred only afterwards, and held the plaintiff had failed to prove willful and deliberate disobedience. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Land Registrar was in willful and deliberate disobedience of the orders of September 18, 2019

Holding

No - the plaintiff failed to prove service of the order on the Land Registrar before the registration of the suit properties in favour of Isaac Kipng'etich Arap Langat, and the registration had already been effected when the order was booked, making compliance impossible

Reasoning

The court found no affidavit of service of the order on the Land Registrar before the impugned registration. Both parties admitted service occurred only after the registration, via Form LRA 9 booked on 4/08/2020. The lease documents emanated from the Ministry of Lands in Nairobi, and the new registered owner was not a party to the suit. Without proof of knowledge and willful disobedience to the requisite standard, committal could not issue.

p. 5

Legal principles established

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  • It is the plain obligation of every person against whom a court order is made to obey it unless and until it is discharged
  • The standard of proof in contempt proceedings is higher than a balance of probability, though short of proof beyond reasonable doubt, and the applicant must prove willful and deliberate disobedience
  • Contempt jurisdiction should be exercised with great caution where another remedy is available

Court orders

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  1. 1.The plaintiff's application dated January 31, 2022 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Judicature Actsection 5
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (5)

  • Republic v Attorney General & another ex parte Mike Maina Kamau
    [2020] eKLR
  • Michel Sistus Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR 828
  • Gatharia K Mutitika v Baharini Farm Limited
    [1985] KLR 227
  • Re Maria Annie Davies
    [1889] 21 QBD 236
Jurisdiction invoked
Section 5 of the Judicature Act; sections 1A, 1B, 3A of the Civil Procedure Act; Order 51 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, "Trimborn Agricultural Engineering Limited v Mwangi & 2 others (Environment & Land Case 206 of 2014) [2023] KEELC 549 (KLR)", Case Analysis (2023). Nakuru ELC No 206 of 2014 (contempt application dated January 31, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/549/eng@2023-02-07

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