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ELCDismissedEnvironment & Land Petition 12 of 2021· [2023] KEELC 16228 (KLR)

Stephen M. James & 13 others (On behalf of themselves and 396 Persons) v B2 Yatta Ranching Co-operative Society Limited & 7 others

Environment and Land Court of Kenya
7 March 2023
5,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The court refused to punish anyone for defying a status quo order because the order itself was too vague to be enforced.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitui (LG Kimani J) determined a Notice of Motion dated February 24, 2022 in which 14 petitioners, on behalf of themselves and 396 others, sought contempt summons and punishment against officers of B2 Yatta Ranching Co-operative Society Limited, Katoteni Nguamuka Farmers Environmental Conservation, police commanders and one Wycliffe Oguk for allegedly disobeying a status quo order issued on August 27, 2020 restraining eviction from LR 11802 and 12010. The petitioners alleged demolitions, livestock theft, assaults, arrests and intimidation by police acting at the behest of the society. The 1st Respondent filed grounds of opposition denying involvement; the 2nd Respondent asserted ownership of the land and claimed the petitioners were themselves in breach; the 5th-8th Respondents, through the Attorney General, maintained that their actions were lawful maintenance of law and order and that personal service of the order was not proved. The court held that following the nullification of the Contempt of Court Act, contempt is governed by section 5 of the Judicature Act and English law, and that contempt is quasi-criminal, requiring proof beyond balance of probabilities of breach of a clear and unequivocal order known to the contemnor. Finding that the status quo order did not describe the state of affairs to be preserved, and that the parties understood it differently, the court held the alleged acts, even if true, could not amount to contempt. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the August 27, 2020 status quo order was sufficiently clear to sustain contempt proceedings

Holding

The order was not; it did not describe the state of affairs to be preserved, and the parties understood the status quo differently

Reasoning

The order merely directed that the prevailing status quo be maintained without describing the existing state of affairs. The petitioners presumed it confirmed their possession and restrained eviction, while the respondents claimed the petitioners were themselves in breach. Applying Thugi River Estate, an undescribed status quo order leaves each party with its own understanding, making contempt unenforceable.

p. 11
02

Whether the petitioners proved contempt to the requisite standard

Holding

They did not; even if the alleged acts were true, they could not amount to contempt of an unclear order

Reasoning

Contempt is quasi-criminal and requires proof of wilful and deliberate disobedience of a clear order, with knowledge of its terms. Since the threshold element of a clear and unequivocal order failed, the application failed the test in Sheila Cassatt Issenberg and Samuel MN Mweru, and no finding of contempt could issue against any cited person.

p. 11
03

The applicable law on contempt after the nullification of the Contempt of Court Act

Holding

Following the declaration of unconstitutionality of the Contempt of Court Act, the applicable law reverted to section 5 of the Judicature Act, importing English law on contempt

Reasoning

The court noted that the Contempt of Court Act was declared unconstitutional in Kenya Human Rights Commission v Attorney General, and an unconstitutional statute is void ab initio. Section 5 of the Judicature Act preserves the High Court's contempt powers as possessed by the High Court of Justice in England, so English procedure (CPR Rule 81.4) governs contempt applications.

p. 6

Legal principles established

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  • Contempt of a court order is quasi-criminal and must be proved to a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt
  • A status quo order must clearly and specifically describe the state of affairs to be preserved; an undescribed status quo order cannot found a contempt finding
  • Elements of civil contempt: clear and unequivocal order, actual knowledge of it, and intentional breach

Court orders

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  1. 1.The application dated February 24, 2022 is dismissed
  2. 2.Parties to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 10, 26, 27, 28, 29, 40, 43, 47
  • Contempt of Court ActSection 28
  • Judicature ActSection 5
  • Civil Procedure RulesOrder 1 Rule 10, Order 8 Rule 3, Order 40 Rule 2(a)
  • Limitation of Actions ActSections 37, 38, 41
  • Trust Land ActPart IV
  • English Civil Procedure Rules (Amendment No 3) Rules, 2020Rule 81.4

Cases cited (15)

  • Econet Wireless Kenya Ltd v Minister for Information and Communication of Kenya & another
    (2005) KLR 828

    Importance of obeying court orders

  • Gatharia K Mutikika v Baharini Farm Limited
    (1985) KLR 227

    Standard of proof in contempt, higher than balance of probabilities

  • Peter K Yego & others v Paulie Wekesa Kode

    Contempt must be proven

  • Katsuri Limited v Kapurchand Depot Shah
    (2016) eKLR

    Contempt must be proven

  • Mwene Munda Welfare Association v Kitui County Government & 2 others
    (2019) eKLR

    Adverse possession cannot issue against a county council

  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution and Planning & 3 others
    (2017) eKLR

    Elements to establish contempt

  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    (2021) eKLR

    Elements of civil contempt and standard of proof

  • Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka
    (2019) eKLR

    Need for personal service of court order in contempt

  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR

    Declaration that the Contempt of Court Act is unconstitutional

  • Carr v. State
    (1890) 127 IND 204, 26 NE 778; 11 LRA 370

    Effect of an unconstitutional statute

  • Carey v Laiken
    2015 SCC 17

    Three elements of civil contempt

  • Samuel MN Mweru & Others v National Land Commission & 2 others
    [2020] eKLR

    Requirements to succeed in civil contempt proceedings

  • The Chairman Business Premises Tribunal at Mombasa Exparte Baobab Beach Resort (Mbsa) Ltd
    Msa Misc Appln (JR) No 26 of 2010

    Distinction between status quo order and injunction

  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR

    Status quo order must be specific and clear; parties may otherwise each walk away with their own state of affairs in mind

  • American Cynanid Co v Ethicon
    [1975] 1 All ER 504

    Prudence of preserving the status quo where factors are evenly balanced

Jurisdiction invoked
Articles 2, 10, 26, 27, 28, 29, 40, 43 and 47 of the Constitution; contempt jurisdiction under section 5 of the Judicature Act (Cap 8)

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, "Stephen M. James & 13 others (On behalf of themselves and 396 Persons) v B2 Yatta Ranching Co-operative Society Limited & 7 others", Case Analysis (2023). Environment & Land Petition 12 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16228/eng@2023-03-07

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