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ELCDismissedPetition dated 31st July, 2018 (Machakos ELC)· [2024] KEELC 958 (KLR)

Muli v Chief Land Registrar & 15 others; Kithuku & 7 others (Applicant) (Environment and Land Constitutional Petition 13 of 2018) [2024] KEELC 958 (KLR)

Environment and Land Court
27 February 2024
COChristine Ochieng
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos refused to jail a landowner for contempt because the applicants could not prove she deliberately disobeyed a court order.

What this practically means

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Executive summary

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The 5th–16th Respondents (excluding the 11th) and the nine Interested Parties moved the court by Notice of Motion dated 24th May, 2023 seeking committal of the Petitioner, Ambrosiah Nditi Muli, to civil jail for disobedience of the status quo orders issued by Justice O. Angote on 12th September, 2018, which required the parties to maintain the prevailing status quo as at 10th August, 2018, occupying their respective suit parcels without offering them for sale, charging, alienating or constructing new structures, pending determination of a Preliminary Objection. Supported by the affidavit of Dominic Ndunda Mutuku, the Applicants alleged that from about July 2022 the Petitioner embarked on construction of a permanent house despite letters of 13th July 2022, 1st August 2022 and 30th March 2023, and despite the court's refusal on 21st September 2022 to allow her to complete construction of her deceased son's house. The Petitioner denied contempt, asserting she merely roofed an existing leaking house, that a June 2018 Valuation Report showed the house predated the orders, that the photographs did not meet the electronic evidence threshold, and that some Interested Parties had themselves constructed. The court isolated a single issue: whether the Petitioner was in contempt. Applying the four elements of civil contempt from North Tetu Farmers and Samuel M.N Mweru, and noting that the status quo order was tied to the Preliminary Objection which was dismissed on 24th April 2020 and was never extended, the court held the Applicants failed to prove the construction began and was completed after the order, or willful and mala fides disobedience, to the heightened contempt standard. The maintenance of status quo, the court held, did not exclude actions supporting a decent living such as roofing. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Petitioner was in contempt of the status quo Order of 12th September, 2018

Holding

No contempt established; the Application was dismissed

Reasoning

The impugned status quo Order was unambiguous, but it was tied to the hearing and determination of the Preliminary Objection, which was dismissed on 24th April, 2020, after which the order was never extended. The burden was on the Applicants to prove the construction commenced and was finalized after the order, which they failed to do. The Petitioner's explanation that she only roofed an existing house showed no willful and mala fides disobedience, and the standard of proof in contempt is higher than balance of probabilities.

p. 6
02

Standard of proof applicable in contempt proceedings

Holding

Higher than balance of probabilities and almost beyond reasonable doubt; Applicants did not meet it

Reasoning

Relying on North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and Samuel M.N Mweru & Others v National Land Commission, the court restated the four elements of civil contempt and the requirement of proof to a heightened standard, and found the Applicants' photographic and affidavit evidence insufficient to discharge that burden.

p. 6

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order, knowledge/notice of the terms, breach of the terms, and deliberate conduct, proved to a standard higher than the balance of probabilities and almost beyond reasonable doubt
  • Disobedience constitutes contempt only where the breach is willful and mala fide; honest but mistaken belief that non-compliance is justified is incompatible with the intent required for contempt
  • Maintenance of status quo does not exclude actions supporting a decent living, such as roofing an existing house

Court orders

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  1. 1.The Notice of Motion Application dated 24th May, 2023 is dismissed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159

Cases cited (3)

  • Samuel M.N Mweru & Others v National Land Commission
    [2020] eKLR
  • Republic v County Government of Kitui Ex parte-Fair Plan Systems Limited
    [2022] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (Petition filed 31st July, 2018); contempt application under the court's inherent powers

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, "Muli v Chief Land Registrar & 15 others; Kithuku & 7 others (Applicant) (Environment and Land Constitutional Petition 13 of 2018) [2024] KEELC 958 (KLR)", Case Analysis (2024). Petition dated 31st July, 2018 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/958/eng@2024-02-27

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