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ELCDismissedEnvironment and Land Constitutional Petition 13 of 2020· [2023] KEELC 20798 (KLR)

Benedict Mukuma Kimau & another v Chief Land Registrar & 2 others

Environment and Land Court
18 October 2023
2,615 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court refused to jail land officials for delaying a title deed, but warned they must register it within 60 days once the owners submit all required documents.

What this practically means

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Executive summary

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The Petitioners moved the Court by Notice of Motion dated February 2, 2023 seeking to cite the Chief Land Registrar, the Nairobi County Land Registrar and the Machakos County Land Registrar for contempt of the judgment delivered May 28, 2021 and order issued June 4, 2021, which had declared a violation of their constitutional rights and issued mandamus compelling the Respondents to register and issue a title over UNS. Residential Plot No. 443 Athi River. The Petitioners sought a fine and six months' civil jail. The Respondents, through a Replying Affidavit of a Senior Assistant Chief Land Registrar, denied willful disobedience, explaining that an unsurveyed plot cannot be titled without a survey reference number, a Part Development Plan, Deed Plan and Lease, processes involving the Director of Survey and Director of Land Administration, and that requisite documents had not been furnished. The court framed a single issue: whether the Respondents could be cited for contempt. Applying Section 29 of the Environment and Land Court Act, Section 4(1)(a) of the Contempt of Court Act, and the tests in North Tetu Farmers and Samuel M. N. Mweru, the court held that contempt proceedings are criminal in nature, the burden lies on the applicant to a standard higher than balance of probabilities, and the Petitioners failed to prove willful disobedience, bad faith, or that they furnished the requisite documents; no Penal Notice was indicated on the served order. The application was disallowed with no order as to costs, but the court directed the Petitioners to furnish the requisite documents within 30 days and the 1st Respondent to register the title within 60 days thereafter, failing which contempt would lie.

Key legal issues

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01

Whether the Respondents were in contempt of the judgment and order directing registration and issuance of a title deed

Holding

No contempt established; the application was disallowed

Reasoning

The court found registration of title is a process requiring documents the Petitioners had not furnished. The Respondents explained non-compliance was impracticable, not deliberate. No Penal Notice was attached to the served order. The criminal-nature standard of proof in contempt was not met, and no willfulness or bad faith was shown.

p. 5
02

Elements and standard of proof for civil contempt

Holding

Applicant must prove clear order terms, knowledge, breach and deliberateness to a standard higher than balance of probabilities

Reasoning

Relying on North Tetu Farmers and Samuel M. N. Mweru, the court adopted the four-element test and the requirement that breach be deliberate and mala fide, with good faith rebutting the inference of willfulness. The court also noted the absence of a Penal Notice on the served order.

p. 5

Legal principles established

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  • Contempt proceedings are criminal in nature and the burden of proof lies on the applicant, to a standard higher than the balance of probabilities and almost beyond reasonable doubt
  • Civil contempt requires willful and mala fides disobedience; bona fide non-compliance, even if unreasonable, does not constitute contempt
  • A respondent without capacity to comply with a court order, in the absence of requisite documents, cannot be held in contempt

Court orders

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  1. 1.The Notice of Motion Application dated February 2, 2023 is disallowed
  2. 2.Petitioners to furnish the Respondents with all requisite documents for registration of their title within thirty (30) days from the date of the ruling
  3. 3.Upon receipt of the required documents, the 1st Respondent to register the Petitioners' title within sixty (60) days, failure of which the Respondents will be cited for contempt
  4. 4.No order as to costs

Authorities

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Legislation

  • Environment and Land Court ActSection 29
  • Contempt of Court ActSection 4(1)(a)
  • Constitution of KenyaArticles 27, 28, 35, 40 and 47

Cases cited (9)

  • Republic v Land Registrar, Trans Nzoia County & Attorney General Ex parte Turbo Munyaka Cooperative Society Ltd
    (2017) eKLR
  • Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhamed Dagane, Suing on behalf of the estate of Mohamed Haji Dagane) V Hakar Abshir & 3 others
    (2021) eKLR
  • Peter Paul Ndururi (Suing on behalf of Donor Samuel Wamutu Waiganjo) V Kimani Njuguna & 6 others
    (2021) eKLR
  • Indian Airports Employees Union V Ranjan Catterjee & Another
    AIR 1999 SC 880: 1999(2) SCC: 537
  • Republic V Jomo Kenyatta University of Agriculture and Technology Ex parte Elijah Kamau Mwangi
    (2021) eKLR
  • Mwangi HC Wangondu V Nairobi City Commission
    Nairobi Civil Appeal No. 95 of 1998
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR

    Four elements of civil contempt: clear order terms, knowledge, breach, and deliberate conduct

  • Samuel M. N. Mweru & Others V National Land Commission & 2 Others
    (2020) eKLR

    Contempt requires deliberate and mala fide breach; bona fide non-compliance is not contempt

  • Africa Management Communication International Limited Vs Joseph Mathenge Mugo & Anor
    (2013) eKLR

    Standard of proof in contempt proceedings higher than balance of probabilities

Jurisdiction invoked
Environment and Land Court Act, including Section 29 on contempt of orders of the Court

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, "Benedict Mukuma Kimau & another v Chief Land Registrar & 2 others", Case Analysis (2023). Environment and Land Constitutional Petition 13 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20798/eng@2023-10-18

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