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ELCDismissedNot stated in the judgment· [2024] KEELC 5451 (KLR)

Ngugi & another v Twalib & 4 others; National Envirornment Management Authority & another (Interested Parties) (Environment & Land Petition 1 of 2023) [2024] KEELC 5451 (KLR)

Environment and Land Court
23 July 2024
NMN. A. Matheka
1,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant moved the court by a notice of motion dated 3rd March 2024 under sections 63(a),(c) and (d) of the Civil Procedure Act, section 3A of the Civil Procedure Act and section 5 of the Judicature Act, seeking an order that the 1st, 2nd and 3rd respondents purge contempt of, or be committed to civil jail for breach of, a conservatory order issued on 22nd February 2023 restraining construction on land at Kwa Mwanzia, Jomvu Sub-County, Mombasa, said to bear a penal notice and to have been served on the respondents. The court set out the legal framework on contempt, citing Black's Law Dictionary, section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules, and authorities including Teachers Service Commission v KNUT and Republic v Ahmad Abolfathi Mohammed (quoting Mutitika v Baharini Farm) on the rule-of-law rationale and the standard of proof, which is higher than a balance of probabilities but below proof beyond reasonable doubt. On the facts, the court found the affidavit of service defective because the 1st respondent was not personally served and those served refused to sign, making service improper. The 2nd and 3rd respondents denied controlling the construction, asserting the land belonged to the Constituency Development Fund Mombasa, raising triable issues. Noting also that the main petition remained unheard over a year after the order, the court found the application unmerited and dismissed it with costs on 23rd July 2024.

Key legal issues

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01

Service of contempt orders

Holding

Service was improper where the respondent was not personally served and those served refused to sign

Reasoning

The court perused the affidavit of service of Musyoka Samuel dated 3rd March 2023 and found the 1st respondent was not personally served and the persons served refused to sign, rendering service improper.

p. 3
02

Standard of proof in contempt

Holding

Contempt must be proved to a standard higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Relying on Republic v Ahmad Abolfathi Mohammed and Mutitika v Baharini Farm Limited, the court applied the established intermediate standard because committal affects the liberty of the contemnor and must be exercised with utmost care.

p. 3
03

Triable issues as to the correct contemnor

Holding

Respondents' claim that construction was controlled by the Constituency Development Fund Mombasa raised triable issues

Reasoning

The 2nd and 3rd respondents denied control of the construction, asserting the land belonged to the Constituency Development Fund Mombasa, so they were possibly not the correct parties; this undermined the contempt application.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than on a balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.Application dated 3rd March 2024 dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Section 63(a),(c),(d) of the Civil Procedure Act; Section 3A Civil Procedure Act; Section 5 Judicature Act

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, "Ngugi & another v Twalib & 4 others; National Envirornment Management Authority & another (Interested Parties) (Environment & Land Petition 1 of 2023) [2024] KEELC 5451 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5451/eng@2024-07-23

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