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ELCDismissedEnvironment & Land Case 429 of 2016· [2023] KEELC 21636 (KLR)

Kirobon Farmers Limited v Rono & another

Environment and Land Court
16 November 2023
LOL. A. Omollo
3,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail company directors for disobeying land orders because the applicant couldn't prove exactly who did what.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the Environment and Land Court at Nakuru determined the 1st Defendant's Notice of Motion dated 22nd May 2023 seeking contempt findings and committal to civil jail of ten named directors of the Plaintiff company, Kirobon Farmers Limited, for breach of status quo orders said to have been issued on 9th June 2020 and 16th July 2020 over land parcels Molo South/Keringet Block 2/23 and 2/151 (Kirobon). The applicant alleged the directors subdivided the suit parcel, cut mature hardwood trees, changed user and were selling or leasing plots to third parties, supported by an affidavit of a caretaker, Richard Kipngetich. The Plaintiff, through director David K. A Metet, opposed the application as vague, an abuse of process, and defective for lack of personal service of extracted orders, and disputed the existence of the parcel claimed. The court framed a single issue: whether the Plaintiff was in contempt. Applying the four-element test from North Tetu Farmers Co Ltd v Joseph Nderitu Wanjohi and the quasi-criminal standard in Gatharia K. Mutikika v Baharini Farm Limited, the court found the application failed to specify which parcel was invaded or by whom, that photographs did not establish the alleged breaches, and that there was no evidence the other directors were served with or aware of the orders. Noting that the contempt power is discretionary and of last resort, the court dismissed the application with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the Plaintiff/Respondent was in contempt of the status quo orders

Holding

No - contempt was not proved; the application was dismissed with costs.

Reasoning

The court applied the four-element test for civil contempt. The applicant failed to specify which of the suit parcels was invaded or by whom; photographs did not establish that trees were on, or cut from, the suit parcels or by the directors. Only one director responded, and there was no evidence the other directors were served with or aware of the orders. The court reiterated that contempt is quasi-criminal and must be proved to a heightened standard, and that the contempt power is one of last resort.

p. 7

Legal principles established

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  • Civil contempt requires proof, to a standard higher than balance of probabilities, of four elements: clear and unambiguous terms of the order, knowledge or proper notice, breach, and deliberate conduct.
  • The power to punish for contempt is discretionary, should be used sparingly and is an enforcement power of last resort.

Court orders

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  1. 1.The application dated 22nd May, 2023 is dismissed
  2. 2.Costs of the application to the Plaintif/Respondent

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29
  • Civil Procedure RulesOrder 40 Rule (3)
  • Contempt of Court Act

Cases cited (5)

  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR

    Four elements of civil contempt and the heightened standard of proof, citing Contempt in Modern New Zealand

  • Gatharia K. Mutikika v Baharini Farm Limited
    [1985] KLR 227

    Contempt is quasi-criminal; standard of proof consistent with gravity; contempt jurisdiction exercised with greatest reluctance

  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    [2021] eKLR

    Contempt power is discretionary, used sparingly, a power of last resort

  • Re: Vinay Chandra Mishra
    [(1995) 2 SCC 584]

    Duty of judiciary to protect dignity and authority of the court

  • Carey v Laiken

    Finding contempt too easily cheapens the judicial power it seeks to protect

Jurisdiction invoked
Environment and Land Court Act, Section 29; Judicature Act, Section 5(1) (contempt 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, "Kirobon Farmers Limited v Rono & another", Case Analysis (2023). Environment & Land Case 429 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21636/eng@2023-11-16

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