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ELCOtherEnvironment & Land Case 102 of 2018· [2023] KEELC 17351 (KLR)

Kenya African National Union v Lughanje & 6 others

Environment and Land Court
3 May 2023
EME. K. Makori
2,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Malindi court found a landowner likely disobeyed court orders but refused to jail him yet, ordering cross-examination first to establish the extent of the contempt.

What this practically means

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Executive summary

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The applicant, Kenya African National Union, moved the Environment and Land Court at Malindi by notice of motion dated May 25, 2022 seeking a warrant of arrest and committal of the 1st respondent, Emmanuel Ziro Lughanje, to civil jail for up to two years or a fine of up to Kshs 20 million, or both, for disobeying restraining orders issued on October 8, 2019. Those orders, served on the 1st respondent through his then advocates, restrained him from trespassing on, demanding rent, threatening eviction, constructing on, alienating or otherwise interfering with the suit property known as the KANU Office on plot No 4090 Malindi pending determination of the suit. The applicant alleged the respondent renovated a shop and leased it to a new tenant. The respondent denied the allegations, asserting he purchased the property in 2008 for Kshs 1,000,000 with tenants in place, that rent was payable to him under the sale agreement, and that no new tenant was introduced and no evidence of renovation was produced. The court framed two issues: its jurisdiction to punish contempt, and whether the threshold was met. Relying on Samuel M. N. Mweru v National Land Commission and Katsuri Ltd v Kapurchand Depar Shah, it held it had jurisdiction and that the orders were clear, unambiguous and known to the respondent. It found the respondent appeared to be acting contrary to the orders, but declined to commit him immediately, instead directing that he be summoned for cross-examination to establish the extent of the contempt before being cited. Costs were to be in the cause.

Key legal issues

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01

Jurisdiction to punish for contempt

Holding

The court has jurisdiction and power to punish for contempt arising from the Constitution and statute

Reasoning

The court relied on Mativo J's exposition in Samuel M. N. Mweru v National Land Commission, grounding the power in Articles 159(1) and 10(1) of the Constitution and statute, and noted the parties agreed on this point.

p. 3
02

Whether the threshold for contempt was met

Holding

Knowledge and terms of the order were proved; breach appeared established but the extent of contempt required cross-examination before committal

Reasoning

The court found the orders were clear, unambiguous and served on the 1st respondent through his counsel. On breach, the respondent claimed ownership and receipt of rent under a sale agreement, conduct contrary to the restraining orders, but the court declined immediate committal pending cross-examination.

p. 4

Legal principles established

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  • A court order is binding on the party against whom it is addressed and remains valid until set aside
  • Elements of civil contempt: clear unambiguous order, knowledge, breach, and deliberate conduct

Court orders

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  1. 1.The 1st respondent is to be summoned for cross-examination to establish the extent of the contempt before being cited for contempt

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(1)
  • Constitution of Kenya, 2010Article 10(1) and (2)(a)
  • Evidence ActSection 107(1) and (2)

Cases cited (9)

  • Kenya Human Rights Commission v AG & another
    [2018] eKLR

    Court's jurisdiction and power to punish for contempt

  • Samuel M. N Mweru & others v National Land Commission & 2 others
    [2020] eKLR

    Powers to punish contempt and elements of civil contempt

  • Econet Wireless Kenya Ltd v Minister of Information & Communication of Kenya & another
    [2005] KLR 828

    Importance of safeguarding integrity of court orders

  • Barasa Obango Okwako & another v Alex Wandera Makokha
    [2021] eKLR

    Punishing proven contemnors who deliberately disobey court orders

  • Nyangeri Obiye v Yunuke Sakagwa
    [2014] eKLR

    Applicant has not proved trespass

  • Katherine Isobel Mary Sanders v Khuzema Salim & Anor
    [2022] eKLR

    Burden of proof - he who asserts must prove

  • Katsuri Ltd v Kapurch and Depar Shah
    [2016] eKLR

    Essential elements of civil contempt

  • Peter K Yego & others v Pauline Nekesa Kode

    Contempt is criminal and must be proved before citation

  • Kristen Carla Burchell v Barry Grant Burchell

    Requirements to succeed in civil contempt proceedings

Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10(1), 159(1)) and statute conferring power to punish for contempt

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, "Kenya African National Union v Lughanje & 6 others", Case Analysis (2023). Environment & Land Case 102 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17351/eng@2023-05-03

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