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ELCDismissedEnvironment & Land Case 72 of 2008· [2023] KEELC 20845 (KLR)

Mutiso & another (Suing as the Legal Representatives of the Estate of Mutiso Mumo Kalai) v Musuu & 4 others

Environment and Land Court
18 October 2023
ANA. Nyukuri
2,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court dismissed a contempt claim because the applicants couldn't show the court order's terms were clear enough to breach.

What this practically means

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Executive summary

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The Defendants in Environment & Land Case 72 of 2008 (Machakos) moved the court by Notice of Motion dated 7th March 2022 seeking to have the Plaintiffs cited and punished for contempt of a ruling delivered on 19th February 2021 staying execution of the court's judgment, and orders served on 20th December 2021. The Defendants alleged the Plaintiffs cultivated, subdivided, burnt and took over the suit property, denying them farming for two seasons. The Plaintiffs opposed, contending the order was never served on them or their advocates (their former firm having ceased acting), and that the application lay in the Court of Appeal since an appeal (Civil Appeal No. 249 of 2019) was pending, rendering this court functus officio. The court framed two issues: its own jurisdiction and whether contempt was proved. It held that the court issuing an order retains jurisdiction to punish its contempt; functus officio did not arise. On the merits, applying the elements of civil contempt (clear unambiguous terms, knowledge, deliberate breach) and the elevated standard of proof, the court found the Applicants had only attached the stay order without the judgment or extracted decree, and had not shown that the Plaintiffs' acts amounted to execution of the stayed judgment. Contempt was therefore not proved. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the contempt application should have been filed in the Court of Appeal

Holding

The trial court that issued the order has jurisdiction to punish contempt of it; functus officio does not arise

Reasoning

The court held there is no requirement that contempt of an order of a superior trial court be heard by the Court of Appeal. Functus officio applies only where the court has fully performed its mandate; enforcement of its orders remains within its authority.

p. 4
02

Whether contempt was proved

Holding

Not proved - the applicants did not demonstrate clear terms of the order breached

Reasoning

The applicants attached only the stay of execution order without the judgment or extracted decree, and did not show that cultivating and subdividing the suit property amounted to execution of the judgment. Clarity of the terms breached was therefore not established to the required standard.

p. 5

Legal principles established

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  • The court that issues an order has jurisdiction to hear an application for contempt of that order; filing an appeal does not oust that jurisdiction or render the trial court functus officio
  • Standard of proof for contempt is higher than balance of probability but below beyond reasonable doubt
  • Elements of civil contempt: clear unambiguous order, knowledge of the order, deliberate breach

Court orders

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  1. 1.The application dated 7th March 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Contempt of Court ActSection 4(1)(a)
  • Judicature ActSection 5
  • Civil Procedure ActSection 63(c)

Cases cited (6)

  • Samuel M. N. Mweru & Others vs National Land Commission
    [2020] eKLR

    Elements of civil contempt: clear terms, knowledge, failure to comply

  • Mutikika vs Baharini Farm Ltd
    (1985) KLR 227

    Quoting Breamblevale on standard of proof in contempt

  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others
    [2014] eKLR

    Statutory basis of contempt law - Section 5 Judicature Act and Section 63(c) Civil Procedure Act

  • Gadavarman Thiru Mulpad v Ashok Khot & Another
    [2006] 5 SCC

    Dangers of disobeying court orders; rule of law

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

    Obligation to obey court orders unless discharged

  • Cecil Miller v. Jackson Njeru & Another
    [2017] eKLR

    Ingredients for contempt of court orders

Jurisdiction invoked
Section 5 of the Judicature Act (power to punish for contempt); Environment and Land Court original jurisdiction

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, "Mutiso & another (Suing as the Legal Representatives of the Estate of Mutiso Mumo Kalai) v Musuu & 4 others", Case Analysis (2023). Environment & Land Case 72 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20845/eng@2023-10-18

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