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ELCPartially AllowedEnvironment & Land Case 191 of 2017· [2023] KEELC 17121 (KLR)

Onyango v Muthoni & another

Environment and Land Court
26 April 2023
ANA. Nyukuri
2,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

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 Machakos (A. Nyukuri, J) determined a Notice of Motion dated 9th May 2022 by the Plaintiff, Philista Prudence Minja Onyango, seeking leave for Amboko & Company Advocates to come on record after judgment, citation of the 1st Respondent (Florence Sheila Muthoni) for contempt of the decree of 27th June 2019, her committal to civil jail for up to six months, an order to purge the contempt by removing black cotton soil dumped on Mavoko Town Block 12/130, consequential orders and personal costs. The decree had granted a permanent injunction and declared the Plaintiff sole owner of the suit parcel. The 1st Respondent, deponing as Florence Sheila Wairimu Chogi, denied being the Defendant, denied service, asserted ownership of neighbouring parcel Mavoko Town Block 12/9334, and claimed the dumping occurred on her land, with related issues pending in Machakos ELC No. 49 of 2021. The court granted leave for the change of advocates without objection, but held that contempt, being quasi-criminal, must be proved to a standard above balance of probability. The Applicant produced no return of service of the decree, and her late supplementary affidavit of service was unfiled and unresponded to. With the Respondent's identity and the location of the dumping inconclusive, contempt was not proved. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Leave for change of advocate after judgment under Order 9 rule 9

Holding

Leave granted as no objection was raised and a party has a right to counsel of choice

Reasoning

Order 9 rule 9 requires a court order to effect a change of advocate after judgment. The Plaintiff had been represented by Nchoe, Jaoko & Company Advocates from the outset until after judgment, and now instructed Amboko & Company Advocates. Since no objection was raised to that prayer, the court allowed it.

p. 3
02

Whether the 1st Respondent was in contempt of the decree of 27th June 2019

Holding

Contempt not proved; service of the decree was not proved and identity of the contemnor and the parcel dumped on were inconclusive

Reasoning

The Applicant alleged service of the decree on 17th October 2019 but attached no return of service; a supplementary affidavit of service could not cure this as it was not filed and the Respondent had no chance to respond. The Respondent denied being the Defendant, giving her name as Florence Sheila Wairimu Chogi, and the identity/parcel questions were pending in Machakos ELC No. 49 of 2021. Given the quasi-criminal standard, contempt was not established.

p. 4

Legal principles established

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  • To prove contempt of a court order, the Applicant must show the order is in clear and unambiguous terms, the Respondent knew its terms, breached them, and the breach was wilful
  • The standard of proof in contempt proceedings is higher than balance of probability but below beyond reasonable doubt

Court orders

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  1. 1.Leave granted to the firm of Amboko & Company Advocates to come on record for the Plaintiff/Applicant after judgment
  2. 2.The Notice of Motion dated 9th May 2022 otherwise dismissed for failure to prove contempt
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over contempt of its orders in ELC Case 191 of 2017

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, "Onyango v Muthoni & another", Case Analysis (2023). Environment & Land Case 191 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17121/eng@2023-04-26

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