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ELCDismissedEnvironment & Land Petition 19 of 2020· [2023] KEELC 18601 (KLR)

Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others; Kenya Power & Lighting Co & another (Interested Parties)

Environment and Land Court
5 July 2023
ANA. Nyukuri
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Machakos (A. Nyukuri, J) determined a Chamber Summons dated March 19, 2021 by which the five Petitioners sought leave to institute contempt proceedings against the County Government of Machakos and Colnet Limited Kenya. The Petitioners relied on a judgment of November 20, 2020 in which the court had declared violations of their right to a clean and healthy environment, issued a permanent prohibitory injunction against dumping waste on the quarry road near Kay Group Quarries and the Kenya Power Syokimau Substation, ordered the 1st Respondent to relocate the dumpsite, and directed environmental restoration. They alleged continued dumping by the Respondents, supported by photographs. The 2nd Respondent denied the allegations, contending the photographs lacked particulars of time and date; the 1st Respondent filed no response. The court framed a single issue: whether the Petitioners were entitled to leave to institute contempt proceedings, declining to entertain a new prayer for committal of officials introduced only in submissions, since parties are bound by their pleadings. Applying Section 5(1) of the Judicature Act, the court held that the applicable contempt law is that applied by the High Court of Justice in England, now Part 81 of the English Civil Procedure (Amendment No 2) Rules 2012, which replaced Order 52 of the RSC. Under Rule 81:4, no leave is required for committal for breach of a judgment, order or undertaking. The application was therefore superfluous and was dismissed, with no order as to costs because the response did not address the prayer in the application.

Key legal issues

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01

Whether leave is required before instituting contempt proceedings for breach of a court judgment or order

Holding

Leave is not required; the application for leave was superfluous and was dismissed

Reasoning

Contempt procedure is governed by Section 5(1) of the Judicature Act, which imports the law of contempt applied by the High Court of Justice in England, currently Part 81 of the English Civil Procedure (Amendment No 2) Rules 2012. Under Order 52 RSC leave was required, but Part 81 replaced it, and under Rule 81:4 (committal for breach of judgment, order or undertaking) no leave is needed. The applicants' application fell squarely under Rule 81:4, so leave was unnecessary.

p. 4
02

Whether the court could entertain the new prayer for committal of the County Secretary and directors of the Respondents introduced only in submissions

Holding

The court declined to consider it, holding parties are bound by their pleadings

Reasoning

Although the applicants sought leave to institute contempt proceedings, in submissions they introduced a new prayer for committal to prison of the County Secretary of the 1st Respondent and directors of the 2nd to 5th Respondents. Since parties are bound by their pleadings and issues arise from pleadings, the only issue for determination was whether leave to institute contempt proceedings should be granted.

p. 3

Legal principles established

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  • Leave is not required to commence contempt proceedings for breach of a judgment, order or undertaking under Rule 81:4 of the English Civil Procedure Rules 2012; leave is only required under Rules 81:12 and 81:17

Court orders

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  1. 1.The Chamber Summons dated March 19, 2021 is dismissed as superfluous
  2. 2.No order as to costs
Jurisdiction invoked
Section 5(1) of the Judicature Act (contempt jurisdiction of the High Court); Environment and Land Court jurisdiction over the underlying environmental petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Halai Concrete Quarries & 4 others v County Government of Machakos & 4 others; Kenya Power & Lighting Co & another (Interested Parties)", Case Analysis (2023). Environment & Land Petition 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18601/eng@2023-07-05

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