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ELCDismissedNotice of Motion dated 25th August, 2023 (in the suit before the Environment and Land Court)· [2024] KEELC 870 (KLR)

Huma v Association & another; Nairobi City County & 2 others (Respondent) (Environment and Land Case E318 of 2021) [2024] KEELC 870 (KLR)

Environment and Land Court
15 February 2024
OAO. A. Angote
2,659 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 dismissed a contempt application because the applicants cited the wrong parties and didn't clearly prove the court order was actually breached.

What this practically means

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Executive summary

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The Defendants (Applicants), members of the Plateau Residents Cluster, moved the Environment and Land Court by Notice of Motion dated 25th August 2023 seeking to cite the 2nd, 3rd and 4th Respondents - Nairobi City County, the OCS Kasarani Police Station and the Service Delivery Co-ordinator, Roysambu Sub-County - for contempt of orders issued on 6th July 2023 by Angote J. Those orders had restrained the 1st Respondent (the Plaintiff in the main suit) from commercialising the suit property and had directed the 3rd and 4th Respondents to jointly implement and enforce them. The Applicants alleged continued operation of a garage and deliveries to shops despite service of the orders. The 2nd Respondent opposed through its Principal Counsel, contending it was never a party to the suit, was unaware of the orders, and that the NMS had taken over county functions. The 3rd and 4th Respondents did not respond. The court framed one issue: whether the 2nd, 3rd and 4th Respondents were in contempt. Applying the quasi-criminal standard of proof from Mutitika v Baharini Farm and the four elements of civil contempt, the court held that although service was proved, the photographs produced were not contextualised as to time or place and did not establish that the prohibited activities persisted after the orders. Further, the 2nd Respondent was not a party and no directions were issued against it, and the failure to cite the 1st Respondent - the alleged contemnor - was a fatal omission which could not be cured through a Further Affidavit. The Motion was dismissed with no order as to costs.

Key legal issues

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01

Whether the 2nd, 3rd and 4th Respondents were in contempt of the orders of 6th July 2023

Holding

The application failed: the restrained activities were not proved to be continuing, so no breach by the 3rd and 4th Respondents; the 2nd Respondent was not a party and no orders were directed at it; and the 1st Respondent, the alleged contemnor, was not cited

Reasoning

The orders of 6th July 2023 restrained the 1st Respondent from commercial activities and directed the 3rd and 4th Respondents to enforce them. Service on the 3rd and 4th Respondents was proved, but the photographs produced were not contextualised as to place or time, so the Applicant could not show the prohibited activities persisted after the orders. A party to be cited for contempt must itself have breached or been directed by the orders, and the 1st Respondent's omission was fatal.

p. 6
02

Applicability of the pleading rule and standard of proof despite uncontroverted evidence

Holding

Even uncontroverted allegations must be proved to the quasi-criminal contempt standard; a party cannot expand its case through a Further Affidavit

Reasoning

The 3rd and 4th Respondents did not reply, rendering the contentions uncontroverted, but the burden of proving breach to the higher standard remained. The Further Affidavit alleging breach by the 1st Respondent could not cure the Motion's scope, as the Motion only sought to cite the 2nd to 4th Respondents.

p. 5

Legal principles established

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  • Contempt proceedings are quasi-criminal and the standard of proof is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Elements of civil contempt: the applicant must prove the order was clear and binding, the respondent knew its terms, the respondent failed to comply, and the conduct was deliberate
  • Parties are bound by their pleadings and cannot amend a Motion through a Further Affidavit

Court orders

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  1. 1.The application dated 25th August, 2023 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act/RulesSections 1A, 1B, 3 and 3A; Order 51 Rule 1
  • Judicature ActSection 5
  • Environment and Land Court ActSection 29
  • Contempt of Court Act, 2016Repealed

Cases cited (7)

  • Republic vs Ahmad Abolfathi Mohammed & Another
    [2019] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & another
    [2018] eKLR
  • The Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    [2016] eKLR
  • Republic vs Attorney General & another Exparte Mike Maina Kamau
    [2020] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act (contempt jurisdiction of the Environment and Land 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, "Huma v Association & another; Nairobi City County & 2 others (Respondent) (Environment and Land Case E318 of 2021) [2024] KEELC 870 (KLR)", Case Analysis (2024). Notice of Motion dated 25th August, 2023 (in the suit before the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/870/eng@2024-02-15

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