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ELCDismissedApplication dated 27th November 2023 in the principal suit (Mombasa ELC, Voi)· [2024] KEELC 4732 (KLR)
Criticos & another v AIC Makutano & 66 others (Environment & Land Case 3 of 2024) (Environment and Land) [2024] KEELC 4732 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court in Voi dismissed a contempt claim because court orders only bind people who were parties when they were issued, unless deliberate breach is proved.
What this practically means
#Executive summary
#The Plaintiffs applied by notice of motion dated 27th November 2023 to cite Japhet Mndambo Bashari, the 56th Defendant, for contempt of status quo orders issued by the Environment and Land Court on 9th November 2020, which barred any new person from entering the suit land or carrying out development pending determination of the suit. The Plaintiffs, through Basil Criticos' supporting affidavit, alleged that the 56th Defendant fenced, ploughed and planted crops on the land and placed a container and construction materials thereon, despite having been notified by the Plaintiffs' advocate. The 56th Defendant replied that he was not a party when the orders were issued, having been joined on 16th September 2022, that a separate suit against him (Mombasa ELC No. 143 of 2022) had been dismissed, and that he had occupied Plot No. Taita/Taveta/Lake Jipe Settlement Scheme/779 since 1999. The court set out the contempt framework under section 5 of the Judicature Act and section 29 of the Environment and Land Court Act, and the four ingredients an applicant must prove to a standard higher than the balance of probabilities: a clear and binding order, knowledge, breach and deliberateness. Holding that the 9th November 2020 orders bound only the parties then on record, and that the Plaintiffs had not proved deliberate breach, the court dismissed the application with each party bearing its own costs. Judgment was delivered virtually at Voi on 14th June 2024 by E. K. Wabwoto J.
Key legal issues
#01
Whether the 56th Defendant was in contempt of the orders of 9th November 2020
Holding
The application was dismissed because contempt was not proved to the requisite standard
Reasoning
The orders of 9th November 2020 were issued against defendants then on record; the 56th Defendant was joined only on 16th September 2022 and was in occupation since 1999. The court could not confirm his actions were deliberate breaches, and contempt requires proof of a clear, unambiguous and binding order, knowledge, breach and deliberateness to a standard higher than the civil standard.
p. 6
Legal principles established
#- An applicant seeking to cite another for contempt must prove, to a standard higher than the balance of probabilities, an existing clear and binding order, knowledge of it, breach, and deliberateness
- Orders of court bind the parties on record at the time of issuance; a person not a party when orders were issued cannot readily be cited for contempt absent proof of knowledge and deliberate breach
Court orders
#- 1.The Plaintiffs' application dated 27th November 2023 is dismissed
- 2.Each party to bear own costs of the application
- Jurisdiction invoked
- Section 5 of the Judicature Act; section 29 of the Environment and Land Court Act; the ELC Practice Directions on land proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Criticos & another v AIC Makutano & 66 others (Environment & Land Case 3 of 2024) (Environment and Land) [2024] KEELC 4732 (KLR)", Case Analysis (2024). Application dated 27th November 2023 in the principal suit (Mombasa ELC, Voi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4732/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.