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ELCPartially AllowedNot stated in the judgment· [2023] KEELC 789 (KLR)

Kiambuthi v Gitonga & 4 others; Kiambuthi (Interested Party) (Environment & Land Case 3 of 2020) [2023] KEELC 789 (KLR)

Environment and Land Court
13 February 2023
4,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika determines two applications by the plaintiff in a land dispute over Ruiru/Ruiru East Block 2/2049 (mother title). First, by notice of motion dated February 15, 2021, the plaintiff sought leave to amend the plaint to reflect subdivisions of the mother title registered in his name, on which the defendants were alleged to be trespassing. The respondents opposed, contending the plaintiff had altered the subject matter by subdividing during the pendency of an earlier ruling without leave or notice. Applying Order 8 rules 3 and 5 of the Civil Procedure Rules and the factors in Kassam v Bank of Baroda (Kenya) Limited, the court found no particularised prejudice to the respondents, who had not filed a defence, and granted leave to amend in its entirety, with corresponding leave to the defendants, deeming the draft amended plaint filed and served, and costs in the cause. Second, by notice of motion dated January 27, 2022, the plaintiff sought contempt findings against the 1st and 4th respondents for disobeying injunctive orders issued on October 1, 2020 restraining interference with the suit property. Applying the four elements of contempt and an intermediate standard of proof, the court found the orders clear, binding and known to the respondents, and that photographs dated October 20, 2021 showed post-ruling deposit of building materials and construction in direct disobedience. The 1st and 4th respondents were found in contempt, directed to purge it within 15 days, failing which a notice to show cause would issue for possible committal to civil jail, with costs to the applicant.

Key legal issues

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01

Whether leave to amend the plaint to reflect the subdivisions of the suit property should be granted

Holding

Leave to amend was granted in its entirety; the respondents failed to establish any prejudice that would suffer from the amendment.

Reasoning

The court has a wide discretion under Order 8 rules 3 and 5 of the Civil Procedure Rules to allow amendments at any stage to determine the real questions in controversy. Applying the factors in Kassam v Bank of Baroda (Kenya) Limited, the court found the amendment sought to capture the resultant subdivisions registered in the applicant's name. The respondents' apprehension of difficulty in defending was not supported by particulars, no defence had been filed, and they would have an opportunity to amend any defence.

p. 4
02

Whether the orders of October 1, 2020 were clear, unambiguous and binding on the 1st and 4th respondents despite the subdivision of the mother title

Holding

The orders were found clear, unambiguous and binding; the contention that the suit land no longer existed was untruthful and the orders remained in force.

Reasoning

The orders of October 1, 2020 had not been set aside, appealed or reviewed; an application to set them aside had been dismissed. The ruling was delivered in the presence of counsel for the 1st to 5th respondents and the respondents had sought to set the orders aside, demonstrating knowledge. The description of the suit lands was well known to the parties notwithstanding the new parcel numbers.

p. 6
03

Whether the 1st and 4th respondents breached the orders of October 1, 2020 deliberately

Holding

The court found the 1st and 4th respondents in contempt for depositing building materials and constructing after the ruling, in direct and express disobedience of the orders.

Reasoning

Photographs dated October 20, 2021 showed building materials deposited by the 1st respondent and construction by the 4th respondent after the ruling of October 1, 2020. The orders expressly prohibited wasting, depositing materials and construction. The respondents' rebuttal that the original suit land no longer existed was found untruthful, showing the actions were deliberate. The standard of proof for contempt was attained.

p. 8

Legal principles established

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  • An amendment of pleadings should be allowed freely at any stage of the proceedings as long as it does not cause prejudice or injustice to the opposing side which cannot be remedied by costs.
  • Every person against whom a court order is made has an unqualified obligation to obey the order until it is discharged or set aside.
  • The applicant in contempt proceedings must prove four elements: clear and unambiguous terms of the order, knowledge or notice of the order, breach, and deliberate conduct.
  • The standard of proof in contempt cases is higher than in civil cases but lower than the criminal standard of beyond reasonable doubt.

Court orders

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  1. 1.Leave to amend the plaint in terms of the annexed draft plaint within 7 days from the date of the orders of the court
  2. 2.The defendants granted corresponding leave to amend the statement of defence, if necessary, within 7 days of service of the amended plaint
  3. 3.The draft amended plaint attached to the application deemed as duly filed and served
  4. 4.Parties to comply with Order 11 within a period of 30 days and fix the matter for hearing
  5. 5.Costs of the amendment application to be in the cause
  6. 6.The 1st and 4th respondents found to be in contempt of the court orders issued on October 1, 2020
  7. 7.The respondents directed to purge the contempt within the next 15 days by removing the building materials and stopping the construction in compliance with the court order
  8. 8.In default of compliance, a notice to show cause to issue against the respondents to appear in person before the court on March 6, 2023 to confirm they have purged the contempt or show cause why they should not be committed to civil jail
  9. 9.Costs in favour of the applicant on the contempt application

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3
  • Civil Procedure RulesOrder 8 rule 5
  • Civil Procedure RulesOrder 40 rule 3
  • Civil Procedure RulesOrder 11
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(c)
  • Judicature Act Cap 8 Laws of Kenyasection 5
  • The Contempt of Court Act 1981 (England)
  • Civil Procedure (Amendment No 2) Rules 2012 (England)Part 81

Cases cited (2)

  • Kassam v Bank of Baroda (Kenya) Limited
    [2002] 1 KLR 294
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
Jurisdiction invoked
Original civil jurisdiction; applications brought under Order 8 rules 3 and 5 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, section 63(c) of the Civil Procedure Act and Order 40 rule 3 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, "Kiambuthi v Gitonga & 4 others; Kiambuthi (Interested Party) (Environment & Land Case 3 of 2020) [2023] KEELC 789 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/789/eng@2023-02-13

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