Nduta [Suing as the Surviving Administrator of the Estate of Esther Gathoni - Deceased) v Machua & another; Machua & another (Plaintiff); Nduta (Sued as the Surviving Administrator of the Estate of Esther Gathoni - Deceased) & 3 others (Respondent) (Environment & Land Case 48 of 2018) [2024] KEELC 1285 (KLR)
The bottom line
#A Nairobi land court dismissed a contempt claim because expired orders, 'negative orders' and unproved notice cannot send anyone to jail.
What this practically means
#Executive summary
#Key legal issues
#Operativity of Section 5 of the Judicature Act after the Contempt of Court Act was declared unconstitutional
The Contempt of Court Act was not repealed but declared unconstitutional; Section 20 of the Interpretation and General Provisions Act does not revive repealed provisions, and courts may exercise inherent jurisdiction to avoid a lacuna; Section 5 of the Judicature Act remains operational
The court reasoned that a declaration of unconstitutionality is not a repeal; only Parliament can repeal laws. Under Section 20 of the Interpretation Act, a repeal does not revive a former law unless words are added. Relying on Wanjigi, Samwel Mweru and Waithaka, the court held that courts may invoke inherent jurisdiction to avoid a lacuna in enforcement of court orders, so Section 5 of the Judicature Act and Section 29 of the ELC Act remain available.
Elements and standard of proof in civil contempt
Contempt requires clear and unambiguous orders, knowledge or notice, breach, and deliberate conduct, proved to a standard higher than balance of probabilities but not beyond reasonable doubt
The court adopted Mutitika vs Baharini Farm on the quasi-criminal standard, and the three-element test from Carey vs Laiken as restated in Sheila Cassatt Issenberg, plus the four-element formulation in North Tetu Farmers. The Applicant failed to prove notice to the 2nd, 3rd and 4th Respondents or deliberate breach, providing no return of service.
Whether the preservation orders cited were breached
The 1st April 2008 orders lapsed on 9th November 2017; the 16th May 2019 orders were negative; and at the time of the alleged acts the restrictions had been lifted and the Land Registrar had no notice of the 11th October 2019 orders
Ougo J's judgment of 9th November 2017 determined the summons for revocation, so the Rawal J orders lapsed. Obaga J had dismissed the application seeking restraint, issuing negative orders. Ongeri J's preservation order was never registered against the title; the restriction had been lifted on 21st February 2018, so the Registrar legitimately registered the mutation.
Legal principles established
#- Upon declaration of unconstitutionality of the Contempt of Court Act, the law governing contempt reverted to the pre-Act position and Section 5 of the Judicature Act remains legally operational
- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt
- Negative orders which do not require a party to do or refrain from doing anything are not binding and cannot ground contempt
Court orders
#- 1.The 2nd Plaintiff's application for contempt of court against the Respondents is dismissed with costs
- Jurisdiction invoked
- Section 29 of the Environment and Land Court Act read with Section 5(1) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduta [Suing as the Surviving Administrator of the Estate of Esther Gathoni - Deceased) v Machua & another; Machua & another (Plaintiff); Nduta (Sued as the Surviving Administrator of the Estate of Esther Gathoni - Deceased) & 3 others (Respondent) (Environment & Land Case 48 of 2018) [2024] KEELC 1285 (KLR)", Case Analysis (2024). ELC Suit No. 48 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1285/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.