Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 3285 (KLR)
The bottom line
#A Nairobi court found ten officials and developers guilty of ignoring a stop-construction order; they now face possible fines up to KES 20 million or jail.
What this practically means
#Executive summary
#Key legal issues
#Elements of civil contempt
The court applied the three Carey v Laiken elements: a clear and unequivocal order, knowledge of it, and intentional breach. The orders were clear, service was conceded, and breach was proved against most Respondents and Interested Parties.
The court found no dispute that the orders of 25th May 2023 were clear and unambiguous, and all parties conceded service of the order and penal notice, establishing knowledge. On breach, the Petitioners' photographs, affidavit of service of Elvis Muthoka, and the report of Abednego Chacha established ongoing construction to the required standard. The court expressly found that the violations were proved to the higher quasi-criminal standard, holding all but the 2nd and 7th Respondents and the 1st Interested Party in contempt.
Admissibility of electronic/CCTV evidence
The CCTV videos and photographs were admissible: the 1st Petitioner produced a Certificate of Production of Electronic Evidence satisfying Sections 65(8) and 106B(4) of the Evidence Act, and forgery was not pleaded or proved by the objectors.
The court held that electronic evidence is admissible under Sections 75A and 106B of the Evidence Act notwithstanding that it is not in original form, provided a certificate meeting the statutory conditions is produced. The 1st Petitioner's certificate described the source, process and integrity of the recordings. The Interested Parties alleged forgery but pleaded no particulars and led no evidence, and forgery must be specifically pleaded and distinctly proved. The Respondents also did not seek cross-examination of the 1st Petitioner.
Whether the Respondents failed to enforce the order
The Respondents' claim that they were unaware of continuing construction was rejected as untrue, since the Petitioners had written several letters notifying them of the ongoing breach.
The Respondents contended the application was premature because the Petitioners never brought continuing construction to their attention. The court found letters dated 7th June 2023 to the Respondents, 27th June 2023 to NEMA, and 27th June 2023 to the National Construction Authority notifying them of the ongoing works. A photograph dated 5th June 2023 showed County officers visiting the site, contradicting the assertion of unawareness.
Legal principles established
#- The Environment and Land Court has express jurisdiction to punish for contempt under Section 29 of the Environment and Land Court Act.
- The standard of proof in contempt proceedings is higher than the balance of probabilities but short of beyond reasonable doubt.
- Electronic evidence is admissible under Sections 75A and 106B of the Evidence Act where the requisite certificate is produced, and it need not be in its original form.
- A party alleging forgery or fraud must specifically plead and prove it; fraud cannot be left to be inferred.
Court orders
#- 1.Patrick Analo Akivaga (for 1st Respondent), Stephen Gathuita Mwangi (3rd Respondent), Richard Mumo (5th Respondent), Fredrick Ochanda (6th Respondent), Stella Nyamu (for 2nd Interested Party), Ali Ibrahim Hamamed (3rd Interested Party), Yusuf Asker Mohamed (4th Interested Party), Arch. Salim Komora (5th Interested Party), Eng. Wilson Lepartobiko (6th Interested Party) and Burach Koch (7th Interested Party) found and held guilty for refusing, failing or neglecting to obey the Court's orders given on 25th May 2023.
- 2.The named contemnors to appear personally in court for mitigation and sentencing.
- 3.The named contemnors to pay the costs of the application.
- Jurisdiction invoked
- Section 29 of the Environment and Land Court Act; Section 5(1) of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 3285 (KLR)", Case Analysis (2024). ELC Petition No. E026 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3285/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.