Shigog (Through His Attorney Anwar Saleh Shigog) v Malindi Water & Sewerage Company (MAWASCO) & 3 others (Environment & Land Case 66 of 2022) [2024] KEELC 3604 (KLR)
The bottom line
#A Malindi court dismissed a contempt application because the landowner's evidence—undated photos without a required certificate—failed to prove wilful disobedience beyond reasonable doubt.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to punish for contempt of its own orders
The ELC, being a court of equal status with the High Court, retains inherent contempt powers despite the unconstitutionality of the Contempt of Court Act, 2016
The court reasoned that the declaration in Kenya Human Rights Commission v Attorney General that the Contempt of Court Act was unconstitutional did not strip the ELC of its power to punish disobedience of its own orders. Parliament cannot legislate to take away courts' power to punish for contempt. Section 29 of the ELC Act concerns criminal offences processed through the criminal justice system and does not oust the civil contempt jurisdiction. Order 40 Rule 3 of the Civil Procedure Rules also empowers the court.
Whether the applicants proved willful disobedience of the restraining orders to the required standard
No; the contempt was not proved beyond reasonable doubt and the application was dismissed
Contempt is quasi-criminal and must be proved beyond reasonable doubt. The applicants could not show at what stage the construction stood when the orders were issued; the former Managing Director deponed that construction stopped on receipt of the orders while the current one was on compulsory leave. The photographs relied on were undated and lacked the certificate required under Sections 78 and 106(b) of the Evidence Act, rendering them inadmissible. Willfulness was therefore not established.
Admissibility of photographic (electronic) evidence of the alleged continuing construction
The photographs were inadmissible for want of a Section 106B(4) certificate
Relying on George Gabriel Kiguru & another v Republic and Republic v Barisa Wayu Matuguda, the court held that electronic records are admissible only where the conditions in Section 106B of the Evidence Act are satisfied, including a certificate identifying the electronic record, describing its production and particulars of the device involved. The photographs produced were not dated and no such certificate was attached, so their import and intent were inadmissible.
Legal principles established
#- The ELC, as a court of equal status with the High Court, retains the power to punish for contempt of its own orders notwithstanding the declaration of unconstitutionality of the Contempt of Court Act, 2016; the instructive provision is Section 5(1) of the Judicature Act
- Contempt being quasi-criminal, the applicant must prove the terms of the order, knowledge, breach and willfulness beyond reasonable doubt
- Electronic evidence such as photographs must be accompanied by a certificate under Section 106B(4) of the Evidence Act to be admissible
Court orders
#- 1.The application dated 29 August 2023 is dismissed
- 2.Costs of the application awarded to the 1st respondent
- Jurisdiction invoked
- Inherent powers of a court of equal status with the High Court; Section 5(1) of the Judicature Act and Order 40 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shigog (Through His Attorney Anwar Saleh Shigog) v Malindi Water & Sewerage Company (MAWASCO) & 3 others (Environment & Land Case 66 of 2022) [2024] KEELC 3604 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 29th August 2023 in a suit over plot No. 2078 (Original No. 422/4) Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3604/eng@2024-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.