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ELCDismissedNot stated in the judgment (Notice of Motion dated 28th March 2023)· [2024] KEELC 1714 (KLR)

Mocho (Suing as the legal administrator of the Estate of Taplule Cherop Saranda) v Chepkengei Posho Mill Group & 3 others (Environment & Land Case 25 of 2019) [2024] KEELC 1714 (KLR)

Environment and Land Court
21 March 2024
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The 1st Defendant/Applicant, through Augustine Kimilgo Sang, moved the court by Notice of Motion dated 28th March 2023 under Section 3A of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and Section 29 of the Environment and Land Court Act, seeking the arrest and punishment of the Plaintiff/Respondent, Peter Kibet Mocho, and his four sons for contempt of the court's order dated 27th September 2019 directing maintenance of the status quo prevailing before the filing of the suit over land parcel Kericho/Kapkelei/1250, or alternatively that they be cited for disobedience. The Applicant deponed that on 8th March 2023 the Respondent and his sons denied him access to the land despite the Respondent's earlier conviction for contempt and sentence to a fine of Kshs. 50,000 or one month's imprisonment. The Respondent opposed, contending the application was an abuse of process since a related execution application before the Principal Magistrate's Court at Sotik had been stayed pending determination of the suit. The court held that the status quo order had been directed to the Plaintiff alone; there was no evidence the sons had been joined to the suit, so adverse orders against them would be made in vacuo and would breach Article 50(1). Contempt being criminal in nature and carrying loss of liberty, the applicant had to prove willful disobedience beyond reasonable doubt, adopting the Supreme Court's guidance in Republic v Ahmad Abolfathi Mohammed. The application was found to lack merit and was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff's sons could be punished for contempt when they were not parties to the suit or to the order

Holding

Adverse orders cannot issue against non-parties; doing so would breach Article 50(1) fair-hearing rights

Reasoning

The status quo order of 27th September 2019 was directed to the Plaintiff alone, who was then the only party. There was no evidence the plaint had been amended to join his sons. Punishing them without joinder and service would amount to orders made in vacuo and would infringe the constitutional guarantee of a fair hearing under Article 50(1).

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02

Whether contempt of the status quo order was proved to the required standard

Holding

No; the applicant failed to prove willful disobedience beyond reasonable doubt, so the application was dismissed

Reasoning

Contempt proceedings being criminal in nature and carrying possible loss of liberty, the applicant bore the burden of proving the alleged contempt beyond reasonable doubt. Following the Supreme Court's guidance, committal is a last resort requiring proof of deliberate, willful flouting. On the material before the court, that standard was not met, and the application lacked merit.

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Legal principles established

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  • Contempt proceedings are criminal in nature and the applicant must prove the facts beyond reasonable doubt
  • The power to commit for contempt must be exercised as a last resort and contempt must be deliberate and willful

Court orders

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  1. 1.The Notice of Motion dated 28th March 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 40, Rule 3
  • Environment and Land Court ActSection 29
  • Constitution of KenyaArticle 50(1)

Cases cited (2)

  • Christine Gathenge Wangari vs. Elizabeth Wangari Evans & 11 others
    [2014] eKLR
  • Republic vs. Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act, Order 40 Civil Procedure Rules and Section 29 of the Environment and Land Court Act

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, "Mocho (Suing as the legal administrator of the Estate of Taplule Cherop Saranda) v Chepkengei Posho Mill Group & 3 others (Environment & Land Case 25 of 2019) [2024] KEELC 1714 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 28th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1714/eng@2024-03-21

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