Sheria Na Haki Human Rights Institute v Kara & 8 others; Ethics and Anti – Corruption Commission & another (Interested Parties) (Constitutional Petition E034 of 2023) [2024] KEELC 3668 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa rejected a contempt claim for lack of proof but allowed a court-ordered survey of a disputed community land parcel.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection dated 24th January 2024 was sustainable
The objection was properly raised on points of law emerging from the pleadings, but it failed because sustaining it would require examining disputed facts and exercising judicial discretion
The court applied Mukisa Biscuit Manufacturing: a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Here, determining whether the application had no cause of action required reference to facts disputed by both parties; once the court steps into facts and discretion, the objection ceases to be a point of law and cannot be sustained.
Whether the Petitioner was in contempt of the status quo orders of 31st October 2023
No contempt was proved; the 1st Respondent's application dated 29th November 2023 was dismissed
Although the order of 31st October 2023 was valid, clear and unambiguous and the Petitioner had notice of it, the Applicant failed to adduce evidence proving the alleged breach. The assertions that the Petitioner's Executive Officer led an invasion were unproved; the bus ticket evidence of absence was not conclusively probative either way. Given the criminal nature of contempt and the high threshold involving possible loss of liberty, the Applicant failed to discharge the burden beyond reasonable doubt.
Whether the ELC could order investigation and charging of the Petitioner and its Executive Officer
It could not; the ELC lacks jurisdiction to initiate or call for criminal investigations and prosecutions
Under statute and the Criminal Procedure Code, criminal proceedings are initiated by the state, usually the Director of Public Prosecutions. The ELC adjudicates civil land and environmental disputes; where an offence arises within its jurisdiction, the matter is reported to the relevant criminal court. The court also cautioned against using the criminal process to settle civil land disputes.
Whether the Petitioner's application for a survey of the suit property should be granted
Yes; prayers (b) to (e) of the application dated 20th December 2023 were allowed with no orders as to costs
Having dismissed the preliminary objection, the court found no other reason to deny the survey. The survey was intended to clarify and remove doubt as to the identity of the suit property (whether Number 20800 (Original No MN/1/341/3) is the same as MN/1/341/4), informed by the oxygen principle under Article 159(2)(d) of the Constitution, and the Petitioner was to bear the costs of the survey and surveyor.
Legal principles established
#- Court orders must be obeyed however erroneous; the only remedy is to revert to court for review, variation, setting aside or discharge
- Following the nullification of the Contempt of Court Act 2016, Section 5(1) of the Judicature Act continues to apply, importing the English law on committal for contempt including personal service requirements under Rule 81.8 of the English Civil Procedure Rules
- The burden and standard of proof in civil contempt is higher than on a balance of probabilities, almost but not exactly beyond reasonable doubt, because contempt proceedings are akin to criminal proceedings
- A preliminary objection must be a pure point of law; it cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought
- Costs follow the event unless the court, for good reason, orders otherwise
Court orders
#- 1.The Notice of Motion application dated 29th November, 2023 by the 1st Respondent is found to lack merit and is dismissed in its entirety with costs
- 2.The Notice of Motion application dated 20th December, 2023 by the Petitioner is found to have merit and is allowed in its entirety with no orders as to costs
- 3.A land Surveyor is allowed access to the suit property to ascertain whether the suit property known as Number 20800 (Original No MN/1/341/3) is the same as property known as MN/1/341/4 on the Survey of Kenya Sheet Map
- 4.The Mombasa County Police Commander is directed to provide security during the survey exercise
- 5.An order issuing directing the preparation of a survey report for the properties known as Number 20800 (Original No MN/1/341/3) and MN/1/341/4
- 6.Leave is granted for the Petitioner to produce the survey report as evidence in its list of documents
- 7.The Petitioner shall bear the costs of the survey and the surveyor
- 8.The Petition to be heard on 26th September, 2024 by adducing viva voce evidence; mention on 15th July, 2024 for pre-trial conference under Order 11 of the Civil Procedure Rules, 2010
- 9.The orders of status quo on the suit land already issued must be maintained to sustain peace and tranquility
- 10.Costs of the Notice of Motion application dated 29th November, 2023 awarded to the Petitioner; no orders as to the costs of the Notice of Motion application dated 20th December, 2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 read with Section 13(1) of the Environment and Land Court Act; applications brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 3 and Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheria Na Haki Human Rights Institute v Kara & 8 others; Ethics and Anti – Corruption Commission & another (Interested Parties) (Constitutional Petition E034 of 2023) [2024] KEELC 3668 (KLR)", Case Analysis (2024). Constitutional Petition No E034 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3668/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.