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ELCDismissedEnvironment & Land Case 11 of 2023· [2023] KEELC 20122 (KLR)

Kungu v Kungu

Environment and Land Court of Kenya
28 September 2023
5,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt claim over family land, ruling that building a house on land held under a life interest is not contempt of court.

What this practically means

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Executive summary

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The Applicant, Samuel Ndungu Kungu, moved the Environment and Land Court at Murang'a by Notice of Motion dated 8th December 2022 seeking to cite the Respondent, Veronica Waithera Kungu, his stepmother, for contempt of the judgment and decree of 10th November 2016 in Nyeri ELC No. 236 of 2013, which permanently restrained her from disposing of, selling or transferring land parcel Loc.4/Naaro/1557, whose reversion vests in the Applicant, and compelled her to register the land in accordance with the Thika Succession Cause No. 431 of 2009 judgment. The Applicant alleged that the Respondent registered absolute title, allowed one John Mungai to construct a permanent house on the land, and permitted the burial of an infant on it. The Respondent denied contempt, asserting she held a life interest and was entitled to build a house for her sunset years. The court, L.N. Gacheru J, restated that contempt is quasi-criminal and must be proved to a standard higher than balance of probabilities, that the order must be clear and unambiguous, that the contemnor must have knowledge and must have intentionally breached it. The court found the Respondent had knowledge of the decree but held that the decree did not bar use or construction, that no detrimental act to the reversionary interest was proved, and that the alleged burial was unproven. On registration, the court noted a restriction on the title and held the Applicant should have pursued execution rather than contempt. The application was dismissed entirely with costs to the Respondent.

Key legal issues

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01

Standard and burden of proof in contempt proceedings

Holding

The burden lay squarely on the Applicant, and contempt had to be proved to a standard higher than balance of probabilities; he failed to discharge it.

Reasoning

Because contempt sanctions may include committal to civil jail, the contemnor's liberty is at stake, making the proceedings quasi-criminal. The Applicant alleged defiance of the 2016 judgment and decree but tabled no evidence of disposal, sale, transfer or other detrimental dealing, leaving his averments as mere allegations.

p. 10
02

Whether construction of a permanent house and burial of an infant on the suit land breached the decree

Holding

Neither act amounted to contempt; the decree only restrained disposal, sale, transfer or detrimental dealings, and the life interest entitled the Respondent to use and enjoy the land.

Reasoning

The decree did not bar the Respondent from using or building on the land. Construction of a house is a legitimate exercise of a life interest, and burying an infant on the land did not affect the Applicant's reversionary interest, which takes effect only upon the Respondent's demise. No evidence of the alleged burial was tabled.

p. 9
03

Whether failure to register the suit land in accordance with the Thika succession judgment constituted contempt

Holding

No contempt established; a restriction ('no dealings') remained on the title, and the proper course was to return to court for execution, not contempt proceedings.

Reasoning

The title was registered in the Respondent's name in October 2013, before the 2016 decree, and a restriction placed on the title in January 2017 barred dealings. The court questioned how the Respondent could effect registration while the restriction persisted, and noted the Applicant, who was party to the suit, should have sought execution of the decree instead.

p. 10
04

Knowledge of the judgment and decree

Holding

The Respondent had knowledge of the judgment and decree, having attached them as evidence in a res judicata application at Kandara PM's Court.

Reasoning

Although the Respondent was absent when judgment was delivered in Nyeri ELC No. 236 of 2013, she filed the judgment and decree in support of her Notice of Motion dated 4th March 2021 seeking to strike out Kandara ELC No. 2 of 2021 as res judicata, demonstrating actual knowledge. The remaining question was whether the order was clear and unambiguous.

p. 9

Legal principles established

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  • Contempt of court proceedings are quasi-criminal in nature and the alleged contempt must be proved to a standard higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
  • An applicant for contempt must prove the order was clear and unambiguous, that the alleged contemnor had knowledge or proper notice, that there was breach, and that the conduct was deliberate.
  • Contempt proceedings should not be used in aid of a civil remedy where another method of doing justice, such as execution, is available.
  • A life interest holder may use and enjoy the suit land during her lifetime, including constructing a permanent house, so long as no act is detrimental to the reversionary interest.

Court orders

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  1. 1.The Notice of Motion Application dated 8th December 2022 is dismissed entirely with costs to the Defendant/Respondent

Authorities

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Legislation

  • Evidence ActSection 107
  • Judicature ActSection 5(1) and 5(2)

Cases cited (9)

  • Husein Alibhai Pirbhai & Another vs Northwood Development Company Ltd & Anor
    Nairobi ELC No.185 of 2011
  • Sheila Cassatt Issenberg & Another Vs Antony Macharia Kinyanjui
    (2021) eKLR

    Contempt is criminal in nature; proof higher than balance of probability; applicant must prove wilful and deliberate disobedience.

  • R v Attorney General & Another Exparte Mike Maina

    Elements of contempt: clear unambiguous order, knowledge/notice, breach, and deliberate conduct.

  • Mutitika vs Baharini Farm Ltd
    [1985] KLR 229 (also cited as 227)

    Contempt is of criminal character; guilt proved with strictness; contempt not to be used in aid of a civil remedy where another method exists.

  • Carey vs Laiken
    2015 SCC 17

    Three elements of civil contempt: clear and unequivocal order, actual knowledge, and intentional breach.

  • Teachers Service Commission vs Kenya National Union of Teachers and 2 Others
    (2013) eKLR

    A court order is a directive that must be complied with; defiance is not an option.

  • Christine Wangari Gachage vs Elibeth Wanjiru & 11 Others
    (2014) eKLR

    Section 5(1) & (2) Judicature Act imposes duty to ascertain applicable contempt law in England.

  • Econet Wireless Kenya Ltd vs Minister for Information and Communication of Kenya & Another
    (2005) KLR 878

    Obligation to obey court orders unless discharged, even if believed irregular or void.

  • Peter K. Iyego & 2 Others vs Pauline Wekesa Kode
    Acc No. 194 of 2014

    Actual disobedience of the court order must be proved before one is cited for contempt.

Jurisdiction invoked
Section 5 of the Judicature Act (jurisdiction of superior courts 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, "Kungu v Kungu", Case Analysis (2023). Environment & Land Case 11 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20122/eng@2023-09-28

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