Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated 10/11/2023 (suit concerning Kilifi/Mtwapa/659)· [2024] KEELC 3298 (KLR)

KADEEJ KASUKARI TEMBO & 12 others v MOHAMED ALI SAID

Environment and Land Court
23 April 2024
MNMwangi Njoroge
1,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a contempt application because weak, uncorroborated evidence failed to prove the landowner actually defied court orders.

What this practically means

#

Executive summary

#
The applicants sought committal of the respondent to civil jail for disobeying status quo orders issued on 25th October 2023 and extended on 6th November 2023 in a land dispute over Kilifi/Mtwapa/659. They alleged the respondent hired a caretaker who uprooted their crops and threatened an applicant, and produced a compact disc recording said to contain the caretaker's confession. The respondent denied the allegations, claiming he had himself been ejected from the plot and injured, and raised a preliminary objection that the application was anchored on repealed Section 5 of the Judicature Act. The court dismissed the preliminary objection, holding under Order 51 rule 6 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution that failure to cite the correct provision is not fatal where the substance of the application is clear, it being apparent the motion was grounded in Order 40 rule 3. On the merits, the court found the audio recording uncorroborated and incapable of establishing that the voice belonged to the alleged caretaker, and no other evidence linked the respondent to the breach. The court criticised the applicants' failure to join the alleged caretaker to the committal application, stressed the seriousness of contempt and the need for cogent proof where liberty is at stake, and dismissed the application dated 10/11/2023 with costs.

Key legal issues

#
01

Whether reliance on repealed Section 5 of the Judicature Act renders the contempt application fatally defective

Holding

No - omission of the correct provision is not fatal; the court may invoke Article 159(2)(d) and Order 51 rule 6 CPR to cure the defect

Reasoning

The respondent argued the applicants relied on Section 5 of the Judicature Act Cap 8, repealed by the Contempt of Court Act 2016, rather than Order 40 rule 3(1) CPR. The court held that under Order 51 rule 6 CPR no application shall be defeated by a technicality not affecting its substance, and the application on its face sought punishment for contempt under Order 40 rule 3 CPR. The preliminary objection therefore failed.

p. 2
02

Whether the respondent was guilty of contempt for breach of the status quo orders

Holding

No - the applicants failed to prove, on evidence, that the respondent instructed the caretaker who allegedly breached the orders

Reasoning

The applicants produced an audio recording allegedly of the caretaker, but without corroboration the court could not confirm the voice belonged to him, and there was no other evidence linking the respondent to the acts. The court noted the applicants could have joined the alleged caretaker to the committal application but did not. Given contempt's seriousness and potential loss of liberty, shallow evidence could not ground a finding of contempt.

p. 3

Legal principles established

#
  • Failure to state or cite the correct statutory provision under which an application is made is not fatal where the substance of the application is disclosed
  • Contempt must be proved to a standard commensurate with its gravity; evidence must establish the breach and the contemnor's responsibility

Court orders

#
  1. 1.The application dated 10/11/2023 is dismissed with costs

Authorities

#

Legislation

  • Judicature ActSection 5
  • Contempt of Court ActNo. 46 of 2016
  • Civil Procedure RulesOrder 40 rule 3(1)
  • Civil Procedure RulesOrder 51 rule 6 ( Provision under which application is made to be stated [Order 51, rule 10] )
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 259(1)(b)

Cases cited (2)

  • Hermanus Phillipus Steyn Vs Giovanni Gnecchi Ruscone
    (2013) eKLR
  • Faustina Njeru Njoka v Kimunye Tea Factory Ltd
    2022 eKLR
Jurisdiction invoked
Order 40 rule 3 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KADEEJ KASUKARI TEMBO & 12 others v MOHAMED ALI SAID", Case Analysis (2024). Application dated 10/11/2023 (suit concerning Kilifi/Mtwapa/659). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3298/eng@2024-04-23

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