Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 6th December 2023 (within the pending suit)· [2024] KEELC 3803 (KLR)

David Waweru Gakuya & Another v Abdiweli Aden Duntow & Others

Environment and Land Court
22 April 2024
3,400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Nairobi's Environment and Land Court found a landowner guilty of contempt for evicting tenants despite court orders protecting them, and he now faces sentencing.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 6th December 2023 under Articles 23(3), 40, 48 and 159(2)(d) of the Constitution, the Contempt of Court Act, the Civil Procedure Act and Rules, and the Land Registration Act, the Plaintiffs sought summons against the 1st Defendant for breaching status quo orders issued on 23rd October 2023, conservatory orders restraining construction, transfer, sub-division, disposal and eviction, committal to civil jail for six months, and enforcement of the status quo orders. The 1st Defendant denied the breach, asserting he had acted under Tribunal eviction orders granted on 15th August 2023. The court first delineated what was live before it, holding the enforcement prayer moot since similar orders existed, and the conservatory prayers a misnomer improperly combined with contempt relief and unsupported by the established principles. The sole issue was whether the 1st Defendant was in contempt. Applying the quasi-criminal standard of proof - higher than balance of probabilities but below beyond reasonable doubt - and the four-element test for civil contempt, the court found the order clear, service admitted, and counsel present when it issued. The 1st Defendant's assertion that he acted under Tribunal orders was treated as an admission of interference with the property, shifting the evidential burden to him; the exhibited orders were not eviction orders and referenced unexhibited orders of 31st July 2023. The court found contempt proved. It declared the 1st Defendant in contempt, directed him to appear in person for mitigation and sentencing, and ordered him to pay the costs of the application. Judgment delivered virtually in Nairobi on 22nd April 2024 by O. A. Angote J.

Key legal issues

#
01

Whether the 1st Defendant was in contempt of the status quo orders issued on 23rd October 2023

Holding

Yes. The terms of the order were clear, service was admitted, and the Defendant's own assertion of an eviction was an admission of interference with the property which he failed to justify with lawful orders.

Reasoning

The order of 23rd October 2023 was valid and its terms clear. The 1st Defendant admitted service and his counsel was present when the orders issued. His claim that he acted under Tribunal eviction orders of 15th August 2023 constituted an admission that he interfered with the suit property, shifting the evidential burden to him. The exhibited Tribunal orders were not eviction orders and referenced unexhibited orders of 31st July 2023. Counsel also did not dispute at the hearing that plaintiffs were in possession. Contempt was therefore established to the required standard.

p. 7
02

Standard of proof and elements applicable in civil contempt proceedings

Holding

Contempt proceedings are quasi-criminal; the standard is higher than balance of probabilities but short of beyond reasonable doubt, and four elements must be proved.

Reasoning

Relying on the Supreme Court in Republic v Ahmad Abolfathi Mohammed and the Court of Appeal in Mutitika v Baharini Farm, the court held contempt quasi-criminal, attracting an intermediate standard of proof because committal affects the contemnor's liberty. Adopting the 'Contempt in Modern New Zealand' exposition, the applicant must prove clarity and binding nature of the order, knowledge or notice, breach, and deliberate conduct. The court expressly adopted these principles as its guide.

p. 5
03

Whether conservatory orders could be granted within a contempt application

Holding

No - that was a misnomer and such prayers belong in a separate motion; in any event the status quo orders remained in force and the principles for conservatory orders were not demonstrated.

Reasoning

The court delineated what was properly before it, noting that several reliefs had already been granted or were spent. It held that combining conservatory relief with contempt proceedings was procedurally improper, that plaintiffs made no submissions on the injunctive principles, and that existing status quo orders already protected the property, rendering the enforcement prayer moot.

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt
  • Four elements must be proved for civil contempt: clear and unambiguous binding order terms; knowledge; breach; and deliberate conduct
  • The evidential burden may shift in the course of trial depending on the evidence adduced
  • Court orders must be obeyed; disobedience attracts punishment

Court orders

#
  1. 1.An order that the 1st Defendant, Abdiweli Aden Duntow is in contempt of the orders of this Court
  2. 2.The 1st Defendant, Abdiweli Aden Duntow, to appear in person in court for mitigation and sentencing
  3. 3.The 1st Defendant to pay the costs of the application

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 23(3), 40, 48, 159(2)(d)
  • Contempt of Court Act No. 46 of 2016Section 5(b)
  • Civil Procedure Act, Cap 21Sections 3, 3A, 63(c)
  • Land Registration Act, 2012Sections 24, 25, 26
  • Civil Procedure Rules, 2010Order 40 rules 1 & 4; Order 51 Rule 1
  • Judicature ActSection 5
  • Environment and Land Court ActSection 29

Cases cited (8)

  • Republic vs Ahmad Abolfathi Mohammed & Another
    [2019] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • The Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Mutitika vs Baharini Farm Limited
    [1985] KLR 229, 234
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    (2016) eKLR
  • Republic vs Attorney General & Another Exparte Mike Maina Kamau
    [2020] eKLR
  • Mbuthia Macharia vs Annah Mutua & Another
    [2017] eKLR
Jurisdiction invoked
Articles 23(3), 40, 48 and 159(2)(d) of the Constitution; Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Waweru Gakuya & Another v Abdiweli Aden Duntow & Others", Case Analysis (2024). Notice of Motion dated 6th December 2023 (within the pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3803/eng@2024-04-22

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