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ELCAllowedMemorandum of Appeal dated 28th September 2023 (appeal against Ruling of Hon. Wendy Micheni, Chief Magistrate, delivered 13th September 2023)· [2024] KEELC 686 (KLR)

Nelifa Holdings Limited v Kanee (Civil Appeal E026 of 2023) [2024] KEELC 686 (KLR)

Environment and Land Court
15 February 2024
7,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a contempt finding because the injunction had lapsed and the evidence didn't meet contempt's strict proof standard.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi (Oguttu Mboya, J) against a Ruling of Hon. Wendy Micheni, Chief Magistrate, delivered on 13th September 2023, allowing an application dated 17th December 2021 seeking to cite and punish the Appellant and her directors for contempt of ex-parte injunction orders issued on 12th November 2021 restraining eviction of the Respondent from Land Reference No 209/9832. The Appellant argued that the Respondent was never in occupation, that the orders had lapsed, and that contempt had not been proved to the requisite standard; the Respondent contended he had occupied the property since 1977, that the Appellant demolished his structures, and further objected to the Record of Appeal for including pleadings filed after the impugned Ruling. The court framed three issues: whether the ex-parte orders existed on 30th November 2021; whether the Appellant disobeyed them; and whether contempt was proved to the requisite standard. The court found no record of extension or reinstatement of the orders, held they automatically lapsed on 24th November 2021 and could not be reinstated; found the photographs tendered by the Respondent inadmissible for want of a Section 106B Evidence Act certificate and lacking date, time and place; held the uncontroverted replying affidavit of Zephania Gitau Mbugua negated occupation; and applied the intermediate standard of proof in Mutitika v Baharini Farm Ltd. The appeal was allowed, the Ruling of 13th September 2023 and consequential orders set aside, with costs awarded to the Appellant.

Key legal issues

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01

Existence of the ex-parte interim orders as at 30th November 2021

Holding

The ex-parte orders of 12th November 2021 lapsed automatically on the return date of 24th November 2021 as they were not extended, and could not be reinstated; they were non-existent as at 30th November 2021

Reasoning

The return date fixed by the Chief Magistrate was 24th November 2021. No proceedings exist showing extension of the orders on that date or reinstatement on 30th November 2021. Court orders must be recorded; absent any record, the alleged reinstatement cannot stand, and a lapsed order cannot be revived in any event.

p. 7
02

Willful disobedience of court orders

Holding

The Respondent neither proved any act of eviction nor that any subsisting order was disobeyed; the photographs tendered were inadmissible for want of a Section 106B certificate and lacked date, time and place

Reasoning

The contempt application was anchored on lapsed orders of 12th November 2021. The only evidence of eviction was photographs which were not accompanied by an electronic certificate, bore no date, time or place, and were found to be capable of manipulation. Orders made on 30th November 2021, if any, did not underpin the contempt application.

p. 13
03

Proof of contempt to the requisite standard

Holding

The material placed before the Chief Magistrate did not meet the intermediate standard of proof for contempt; the question of occupation was never resolved before a finding of eviction-based contempt

Reasoning

Contempt requires proof almost but not exactly beyond reasonable doubt. The Respondent's suit disclosed no evidence of any house or structure, the uncontroverted replying affidavit of Zephania Gitau Mbugua asserted the Respondent was never in occupation, and the Chief Magistrate herself doubted occupation. A finding of eviction without established occupation was illogical.

p. 15

Legal principles established

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  • Once an ex-parte order lapses on the return date for want of extension, it ceases to exist and cannot be reinstated; only a fresh order on the same or other terms may issue
  • Electronic evidence, including photographs, must be accompanied by a certificate under Section 106B of the Evidence Act, failing which it is inadmissible
  • Adverse averments in a replying affidavit not controverted by a further or supplementary affidavit are taken as uncontroverted or admitted
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The impugned Ruling rendered on the September 13, 2023, together with the consequential orders be and are hereby set aside
  3. 3.Costs be and are hereby awarded to the Appellant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 13
  • Civil Procedure Rules, 2010Order 40
  • Evidence Act, Chapter 80 Laws of KenyaSection 106B (and Section 106A)
  • Evidence Act, Chapter 80 Laws of KenyaSection 112

Cases cited (8)

  • Gatharia K Mututika v Baharini Farm Ltd
    (1985)eKLR
  • Bwana Muhamed Bwana v Silvano Buko Bonaya & 2 others
    (2015)eKLR
  • Hadkinson v Hadkinson
    (1952) ALL ER 285 / (1952)2 ALL ER 211
  • Johnson v Walton
    (1990) 1FLR 350
  • The Speaker, County Assembly of Kisumu & 2 others v Clerk, Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Mumias Sugar Company Limited & 5 others v Musa Ekaya
    [2017] eKLR
  • Republic v Barisa Wayu Matuguda
    [2011] eKLR
  • Mohammed & another v Haidara
    [1972] E.A 166
On appeal from
Chief Magistrate's Court
Suit in which the Respondent filed a Plaint dated 10th November 2021; impugned Ruling delivered 13th September 2023
Jurisdiction invoked
Appellate jurisdiction under Order 42 of the Civil Procedure Rules, 2010 (first appeal from the Chief Magistrate's Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nelifa Holdings Limited v Kanee (Civil Appeal E026 of 2023) [2024] KEELC 686 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 28th September 2023 (appeal against Ruling of Hon. Wendy Micheni, Chief Magistrate, delivered 13th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/686/eng@2024-02-15

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