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ELCDismissedNarok ELC Appeal (amended memorandum of appeal dated March 14, 2022)· [2023] KEELC 796 (KLR)

Raurau v Njoroge & 5 others (Environment and Land Appeal 22 of 2020) [2023] KEELC 796 (KLR)

Environment and Land Court
16 February 2023
MGMbogo C G
2,066 words in judgment
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The bottom line

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The Environment and Land Court in Narok dismissed a contempt appeal because the party could not prove the other side was properly served with, and knew of, the court order.

What this practically means

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Executive summary

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The appellant appealed to the Environment and Land Court at Narok against a ruling of Hon G Wakahiu, Chief Magistrate, delivered on July 21, 2020 in Narok ELC Case No 55 of 2018, dismissing the appellant's notice of motion dated November 12, 2019 which sought the arrest and committal to jail of the 1st, 4th, 5th and 6th defendants, or alternatively attachment and sale of their property, for contempt of interim orders of injunction issued on March 28, 2018 by Kullow, J restraining dealing with parcels Cis-Mara/Eor-Enkitok/90 and 91. The appellant advanced twelve grounds of appeal alleging that the trial magistrate failed to evaluate the affidavit evidence, was biased, applied the wrong standard of proof and imposed punitive costs. Neither party filed written submissions. As a first appellate court, the judge re-evaluated the evidence and set out the law on contempt under section 5 of the Judicature Act as restated in Christine Wangari Gachege, adopting the four-element test and the quasi-criminal standard of proof higher than balance of probabilities. The court found the orders clear, and that the 1st respondent's sworn replying affidavit showed knowledge of the orders, but held that without a valid affidavit of service on the record - and given the appellant's failure to call the process server for cross-examination - it could not be established that all respondents had knowledge of or breached the orders. The contempt application was also found to have been abandoned midway. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether the respondents had knowledge or proper notice of the orders allegedly disobeyed

Holding

Only the 1st respondent's knowledge could be inferred from an affidavit sworn in court; without a valid affidavit of service, knowledge of all respondents could not be established

Reasoning

The first appellate court re-evaluated the evidence. Although the 1st respondent swore an undated replying affidavit in court on April 18, 2018 showing knowledge of the orders, the lower court record did not contain the affidavit of service sworn by Erastus Kirui on April 11, 2018. The appellant failed to call the process server for cross-examination despite being granted an opportunity to do so. The court therefore could not find that all respondents had knowledge of the orders.

p. 4
02

Whether the breach of the order was proved to the requisite standard

Holding

The third and fourth elements of contempt (breach and deliberate conduct) were not proved

Reasoning

The court applied the quasi-criminal standard of proof from Gatharia K Mutikika v Baharini Farm Ltd, reiterated that a contempt application must be precisely defined and satisfactorily proved, and found that since service and knowledge of the orders were not established, breach and deliberateness fell in the negative. The court also noted the contempt application was abandoned midway once interim injunction orders were obtained.

p. 5

Legal principles established

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  • Four elements must be satisfied for a party to succeed in an application for contempt of a court order
  • Contempt proceedings are quasi-criminal and attract a standard of proof higher than the balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.The amended memorandum of appeal dated March 14, 2022 is dismissed
  2. 2.No orders as to costs
On appeal from
Chief Magistrate's Court, Narok
Narok ELC Case No 55 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Environment and Land Court Act) - not expressly stated in the judgment

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, "Raurau v Njoroge & 5 others (Environment and Land Appeal 22 of 2020) [2023] KEELC 796 (KLR)", Case Analysis (2023). Narok ELC Appeal (amended memorandum of appeal dated March 14, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/796/eng@2023-02-16

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