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ELCPartially AllowedNot stated in the judgment (application dated 23rd August 2023)· [2024] KEELC 3356 (KLR)

Akeyo v Burkmayer & another (Environment & Land Case 67 of 2018) [2024] KEELC 3356 (KLR)

Environment and Land Court
25 April 2024
NMN.A. Matheka
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa land registrar who ignored a 2018 title order must comply within 60 days or face a fine and jail.

What this practically means

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Executive summary

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This was a contempt-of-court application dated 23rd August 2023 brought by Alphonse Akeyo under Section 1A(3) and 63(c) of the Civil Procedure Act and Order 40 Rules 3(1) and 4(1) of the Civil Procedure Rules, 2010, seeking committal of the Chief Land Registrar Mombasa to civil jail for six months. The application was anchored on a consent order entered on 30th July 2018 and issued on 27th August 2018, made by Justice Yano, compelling the Land Registrar Mombasa to register and issue a provisional title deed in respect of plot CR-Number 21646 number 1881 Section II/MN in favour of the applicant. The order was served in January 2019, yet nothing had been done. The application was unopposed. Matheka J set out the law on contempt, citing the definition in Black's Law Dictionary, the statutory powers under Section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1), and the standard of proof adopted in Republic vs Ahmad Abolfathi Mohammed, which restates Mutitika vs Baharini Farm Limited: the standard is higher than the balance of probabilities but not beyond reasonable doubt. The court held that all persons served with or aware of a court order have a duty to obey it, and that the only avenue open to a dissatisfied party is to seek variation or setting aside, which was not done. Finding the application merited, the court declined to commit immediately, instead directing the Land Registrar to comply within 60 days of service, failing which a fine of Kshs. 50,000/= would be payable and, in default, committal to civil jail for one month. Costs of the application were awarded to the applicant.

Key legal issues

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01

Whether contempt of court was established against the Land Registrar Mombasa

Holding

The application was unopposed, the order had been served, and no variation or setting aside was sought; contempt was established but committal was suspended subject to compliance within 60 days

Reasoning

A consent order was entered on 30th July 2018 and issued on 27th August 2018 compelling registration and issuance of a provisional title deed. It was served on the Registrar in January 2019 and nothing was done. The application was unopposed and no step to vary or set aside the order was taken. The court, guided by the quasi-criminal standard of proof and the need to safeguard the rule of law, found the application merited but allowed 60 days for compliance before the fine and committal sanctions apply.

p. 3
02

Applicable standard of proof in contempt proceedings

Holding

Higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Relying on the Supreme Court's adoption of Mutitika vs Baharini Farm Limited, the court noted that liberty of the contemnor is at stake and the power to commit must be exercised with utmost care and only as a last resort, warranting the intermediate standard.

p. 3

Legal principles established

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  • All persons served with or aware of a court order have a duty to obey it; the only avenue for a dissatisfied party is to seek variation or setting aside
  • The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.The Land Registrar Mombasa to comply with the court order issued on 27th August 2018 within the next 60 (sixty) days after service of this order, failing which the Land Registrar will be cited for contempt and directed to pay a fine of Kshs. 50,000/= and in default be committed to civil jail for a period of one (1) month
  2. 2.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure Act Cap 21Section 1A(3) and 63(c)
  • Civil Procedure Rules, 2010Order 40 Rules 3(1) and 4(1)

Cases cited (3)

  • Teachers Service Commission vs Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Republic vs Ahmad Abolfathi Mohammed & Another
    (2018) eKLR
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229, 234
Jurisdiction invoked
Section 1A(3) and 63(c) of the Civil Procedure Act Cap 21 and Order 40 Rules 3(1) and 4(1) of the Civil Procedure Rules, 2010

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, "Akeyo v Burkmayer & another (Environment & Land Case 67 of 2018) [2024] KEELC 3356 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 23rd August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3356/eng@2024-04-25

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