Kanee v Birdi & 2 others (Environment and Land Case Civil Suit E228 of 2020) [2024] KEELC 103 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondents were in contempt of the status quo orders issued on 21st July, 2022
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
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.
What is the substantive law governing contempt following the repeal of the Contempt of Court Act, 2016
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
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.
Legal principles established
#- 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
#- 1.The application dated 6th October, 2022 is dismissed
- 2.Costs of the application awarded to the Defendants/Respondents
- 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- Articles 41, 47 & 50 of the Constitution of Kenya, 2010; Section 30 of the Contempt of Court Act, 2016 (repealed); Order 40 Rule 4 of the Civil Procedure Rules; Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.