Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (instituted by Originating Summons concerning Plot No. 5908/8 Corner Shop No. 1)· [2024] KEELC 258 (KLR)

Komu (Suing through the Estate of Johnson Kamau Komu - Deceased) v Mwangi; Kirima & another (Interested Parties) (Environment & Land Case E117 of 2022) [2024] KEELC 258 (KLR)

Environment and Land Court
25 January 2024
3,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a contempt claim because the applicant couldn't prove the disobeyed order was properly served or that the breach actually happened.

What this practically means

#

Executive summary

#
The Plaintiff/Applicant moved the Environment and Land Court by Notice of Motion dated 1st February 2023 seeking leave to commence contempt proceedings, committal to civil jail for six months, or in the alternative a fine of Kshs. 10,000,000 against the Respondent, the Directors of the 1st and 2nd Defendants and the Director of Survey, for breach of an injunctive order issued on 16th June 2022 restraining dealings with Plot No. 5908/8 Corner Shop No. 1 pending determination of the Originating Summons. The Respondent opposed, arguing the suit was sub judice given the consolidated Milimani ELC 1257 of 2014 (OS) proceedings, that the standard of proof in contempt is higher than the balance of probabilities, and that the order of 16th June 2022 was never served, the WhatsApp screenshot in the return of service not disclosing the number served contrary to Order 5 Rule 22C. The court framed two issues: sub judice and contempt. On sub judice, applying section 6 of the Civil Procedure Act and the Supreme Court'sKNCHR exposition, the objection failed because the Respondent did not produce the High Court pleadings, the Applicant was not shown to be a party to those suits, and the High Court judgment was delivered on 23rd October 2023. The court also noted the prayers against 'directors' and the Director of Survey were recklessly drafted, the suit having only one Respondent who is not a company. On contempt, applying Mutitika v Baharini Farm, Carey v Laiken and North Tetu Farmers, the court found service unproved (the Afidavit of Service was not filed on the e-filing platform and the screenshot lacked the telephone number) and the breach unproved (photographs lacked a section 106B(4) certificate, date or time stamps, and proof of location). The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the suit is sub judice

Holding

The sub judice objection failed: the Respondent did not present the pleadings from the High Court case to show the claims were the same, and there was no evidence the Applicant was a party to the High Court matters; further, the High Court judgment had been delivered, mooting the objection.

Reasoning

Applying section 6 of the Civil Procedure Act and the Supreme Court's exposition in the KNCHR case, the Respondent had to establish multiple suits over the same subject matter, pending before competent courts, between the same parties. The pleadings from the High Court case were not presented, and the Applicant was shown not to be a party to those suits. Additionally, the judgment in the consolidated High Court suits was delivered on 23rd October 2023, so the objection was overtaken by events.

p. 4
02

Whether the Respondent was in contempt of the order of 16th June 2022

Holding

No contempt established. Service of the order was not proved because the Afidavit of Service was not filed in the Court Management System, and the WhatsApp screenshot did not disclose the phone number served; and the photographs of alleged construction lacked certification under section 106B(4) of the Evidence Act and bore no date, time or proof that the site was the suit property.

Reasoning

The court applied the elements of civil contempt from Mutitika v Baharini Farm, Carey v Laiken and North Tetu Farmers: the order must be clear, the alleged contemnor must have knowledge of it, and the breach must be intentional, all proved to a standard higher than the balance of probabilities. Service by WhatsApp under Order 5 Rule 22C requires the last known and used telephone number and filing of the delivery receipt. Neither service nor the breach was proved to the required standard.

p. 7
03

The court's power to punish for contempt

Holding

The Environment and Land Court has express jurisdiction to punish for contempt under section 29 of the Environment and Land Court Act, concurrent with section 5(1) of the Judicature Act.

Reasoning

The court affirmed that the power to punish contempt exists to uphold the rule of law, citing Teachers Service Commission v KNUT, and that section 29 of the ELC Act makes disobedience of court orders an offence attracting a fine of up to twenty million shillings or imprisonment of up to two years, or both.

p. 5

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than proof on the balance of probabilities, but not as high as proof beyond reasonable doubt.
  • An Applicant alleging contempt must prove effective service of the order and that the breach occurred.

Court orders

#
  1. 1.The Applicant's application dated 1st February 2023 is dismissed
  2. 2.Parties shall bear their own costs

Authorities

#

Legislation

  • Civil Procedure ActSection 6
  • Environment and Land Court ActSection 29
  • Judicature ActSection 5(1)
  • Civil Procedure RulesOrder 5 Rule 22C
  • Legal Notice No. 22 of 2020Introduction of Order 5 Rule 22C
  • Evidence ActSection 106B(4)

Cases cited (10)

  • Gatharia K. Mutikika vs Baharini Farm Limited
    [1985] KLR 227
  • R vs Attorney General & Another Ex parte Mike Maina Kamau
  • Peter K. Yego & Others vs Pauline Wekesa Kode Acc No. 194 of 2014
  • Esther Nyaboke Ondara vs Susa Njeri & 3 others
    [2021] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)
    [2020] eKLR
  • Teachers Service Commission vs Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229, 234
  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    [2021] eKLR
  • Carey v Laiken
    2015 SCC 17 (16th April 2015)
  • North Tetu Farmers Company Ltd vs Joseph Nderitu Wanjohi
    [2016] eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 5(1) of the Judicature Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Komu (Suing through the Estate of Johnson Kamau Komu - Deceased) v Mwangi; Kirima & another (Interested Parties) (Environment & Land Case E117 of 2022) [2024] KEELC 258 (KLR)", Case Analysis (2024). Not stated in the judgment (instituted by Originating Summons concerning Plot No. 5908/8 Corner Shop No. 1). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/258/eng@2024-01-25

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