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ELCDismissedNotice of Motion dated 6th October, 2022 (within main suit, Environment and Land Court, Nairobi)· [2024] KEELC 103 (KLR)

Kanee v Birdi & 2 others (Environment and Land Case Civil Suit E228 of 2020) [2024] KEELC 103 (KLR)

Environment and Land Court
18 January 2024
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The court dismissed a contempt claim over a land injunction because the applicant's photos and evidence were too weak to prove disobedience.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Peter Mwangi Kanee, moved the Court by Notice of Motion dated 6th October 2022 seeking contempt orders against the Defendants for allegedly disobeying status quo orders issued on 21st July 2022, which restrained all parties from developing, selling, transferring, leasing, charging or alienating the suit property pending determination of the suit. The Applicant sought summons against the three named individuals, citation for contempt with compensation, committal to civil jail for six months, purging of the contempt by construction and renting of the suit property, and costs. He alleged the Defendants were served with the orders and continued construction and leasing. The 2nd and 3rd Respondents denied contempt, asserting the perimeter wall was constructed in 2021, the lease to Narayan Limited was entered on 17th August 2021 before the orders, and that the suit property L.R No 209/12458/8 does not exist, its sub-division having been revoked by the Kajiado ELC. The Court framed one issue: whether the Respondents were in contempt of the orders of 21st July 2022 and the appropriate orders. It applied the quasi-criminal standard of proof - higher than balance of probabilities but below beyond reasonable doubt - and the four elements of civil contempt. It found the orders clear and known to the Respondents, but held the Applicant's photographs inadequate, uncontextualised and unsupported by a certificate of electronic evidence, and that no evidence of renting out was adduced. The application was dismissed with costs.

Key legal issues

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01

Whether the Respondents were in contempt of the status quo orders issued on 21st July, 2022

Holding

Contempt was not proved; the applicant's photographic evidence was inadequate and there was no evidence of the alleged renting out of the suit property

Reasoning

The Court accepted the terms of the order of 21st July 2022 were clear and that the Respondents knew of them, having been present when the order was made and duly served. However, on proof of breach, the applicant's photographs were not contextualised as to time and place and no certificate of electronic evidence was produced. No evidence supported the claim of renting out the property. Contempt being quasi-criminal, the heightened standard of proof was not met.

p. 6
02

What is the substantive law governing contempt following the repeal of the Contempt of Court Act, 2016

Holding

Section 5 of the Judicature Act governs, and Section 29 of the Environment and Land Court Act creates an offence for disobedience of the Court's orders

Reasoning

Following the repeal of the Contempt of Court Act, 2016 as declared in the Kenya Human Rights Commission case, the Court turned to Section 5 of the Judicature Act which preserves the High Court's power to punish for contempt, and to Section 29 of the Environment and Land Court Act which penalises disobedience of the Court's orders with a fine not exceeding twenty million shillings or imprisonment of up to two years.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below beyond reasonable doubt
  • To succeed in civil contempt, an applicant must prove clear and unambiguous terms of the order, knowledge by the respondent, breach, and deliberate conduct
  • Court orders must be obeyed; disobedience attracts punishment to protect the dignity and authority of the Court

Court orders

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  1. 1.The application dated 6th October, 2022 is dismissed
  2. 2.Costs of the application awarded to the Defendants/Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47 & 50
  • Contempt of Court ActSection 30
  • Civil Procedure RulesOrder 40 Rule 4
  • Judicature ActSection 5
  • Environment and Land Court ActSection 29

Cases cited (10)

  • Econet Wireless Kenya Ltd vs Minister for Information and Communication of Kenya
    [2005] eKLR
  • Gatharia K Mutikika vs Baharini Farm Ltd
    (1985) KLR 227
  • Oilfield Movers Ltd vs Zahara Oil and Gas Limited
    [2020] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & another
    [2019] eKLR
  • The Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & another
    [2018] eKLR
  • Mutitika v. Baharini Farm Limited
    [1985] KLR 229, 234
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    (2016) eKLR
  • Republic vs Attorney General & Another Exparte Mike Maina Kamau
    [2020] eKLR
Jurisdiction invoked
Articles 41, 47 & 50 of the Constitution of Kenya, 2010; Section 30 of the Contempt of Court Act, 2016 (repealed); Order 40 Rule 4 of the Civil Procedure Rules; Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act

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, "Kanee v Birdi & 2 others (Environment and Land Case Civil Suit E228 of 2020) [2024] KEELC 103 (KLR)", Case Analysis (2024). Notice of Motion dated 6th October, 2022 (within main suit, Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/103/eng@2024-01-18

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