Equity Traders Limited v John & 2 others; Bazalel (Plaintiff); Mukindia & another (Defendant) (Environment & Land Case E005 of 2024) [2024] KEELC 1668 (KLR)
The bottom line
#The High Court dismissed a contempt application because it was poorly drafted, its photo evidence lacked a required certificate, and contempt was never proven.
What this practically means
#Executive summary
#Key legal issues
#Competence of the contempt application
The application was fatally incompetent because the Notice of Motion did not refer to any supporting affidavit and the supporting affidavit did not refer to the application, leaving no nexus between them; further, the further affidavit was sworn by a different deponent than the principal affidavit, contrary to Order 51 Rule 14(3) of the Civil Procedure Rules
The court held that a contempt application must be supported by an affidavit referenced in the body of the motion and accompanying it. Here neither document referred to the other. Additionally, leave to file a further affidavit does not license a fresh affidavit by a new deponent; a further affidavit can only supplement a principal affidavit by the same deponent. Where no valid supporting affidavit exists, no further affidavit can stand, rendering the application incompetent and liable to striking out.
Admissibility of the photographic evidence
The photographs were inadmissible and devoid of probative value as they were not accompanied by an electronic certificate under Section 106B of the Evidence Act, and were accordingly expunged from the record
Relying on the Court of Appeal decisions in the Kisumu County Assembly case and Lodinyo, the court held the certificate requirement under Section 106B(2) is mandatory and designed to vouchsafe the authenticity and integrity of electronic records. The late filing of a certificate via a further affidavit could not cure the defect. The court also rejected the estoppel argument: failure to object to earlier photographs did not bar a subsequent objection, as estoppel cannot defeat a clear provision of the law.
Whether contempt was proved to the requisite standard
Contempt was not proved. The only evidence was the expunged photographs, which in any event predated the court order of 18th January 2024 and could not establish contempt of it
The court adopted the intermediate standard of proof for contempt (higher than balance of probabilities, almost but not exactly beyond reasonable doubt) per Mututika v Baharini and Woburn Estate v Bashforth. The photographs, allegedly taken on 7th January 2023, predated both the suit and the order of 18th January 2024, so even taken at face value they could not demonstrate breach of that order. The application was thus misconceived and devoid of merit.
Legal principles established
#- A Notice of Motion must advert to the supporting affidavit sworn in its support; absent a nexus between the application and the affidavit, the application is incompetent
- A further affidavit can only be filed by the deponent of the principal supporting affidavit; leave to file a further affidavit does not permit a new deponent
- Electronic/photographic evidence must be accompanied by an electronic certificate under Section 106B of the Evidence Act, failing which it is inadmissible and devoid of probative value
- The standard of proof in contempt proceedings is higher than the balance of probabilities but below the criminal standard of beyond reasonable doubt
Court orders
#- 1.The Application dated the 8th of February 2024 be and is hereby dismissed with costs to the Plaintiff/Respondent and the contemnors, to be assessed by the Deputy Registrar of the Court in the usual manner
- Jurisdiction invoked
- Section 39 of the High Court Organization and Administration Act, 2015; Section 5 of the Judicature Act; Rule 39 of the High Court (Organization) General Rules 2016 and the inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nthenge v Nyangi (Environment and Land Case E021 of 2025) [2026] KEMC 289 (KLR)[2026] KEMC 289 (KLR)16 Jun 2026
- Kanderi v Kiki Investment Limited & 2 others; Nadupa Housing Limited (Interested Party) (Environment and Land Case 21 of 2019) [2025] KEELC 8606 (KLR)[2025] KEELC 8606 (KLR)4 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Equity Traders Limited v John & 2 others; Bazalel (Plaintiff); Mukindia & another (Defendant) (Environment & Land Case E005 of 2024) [2024] KEELC 1668 (KLR)", Case Analysis (2024). Not disclosed in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1668/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.