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ELCDismissedNot stated in the judgment (ELC suit, Machakos)· [2024] KEELC 6961 (KLR)

Nyali Beach Cycads Limited v Guchu & 3 others (Environment & Land Case E002 of 2020) [2024] KEELC 6961 (KLR)

Environment and Land Court
17 October 2024
COCHRISTINE OCHIENG
1,586 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail or fine a company for breaching a court order because the order's wording was conditional and ambiguous, so no contempt was proved.

What this practically means

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Executive summary

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The 3rd Defendant, Francis Kamau Guchu, moved the Environment and Land Court at Machakos by Notice of Motion dated 29th September 2023 seeking contempt proceedings against the Plaintiff, Nyali Beach Cycads Ltd, for allegedly demolishing his crops and structures on LR No. 3565 on 28th September 2023 in breach of stay orders issued on 24th September 2021 pending Nairobi Civil Appeal No. E180 of 2021 (Mwaura Kinyanjui v Nyali Beach Cycads Ltd). He sought committal for two years or a fine of Kshs. 2,000,000, or alternatively damages, plus costs. The Plaintiff opposed through a Replying Affidavit of its Director Nderitu Wachira, contending that the stay order was in personam and granted only to the 2nd Defendant on condition that the Court of Appeal validated its Notice of Appeal; that the earlier orders of 19th March 2021 compelling removal of structures remained in force against the 1st, 3rd and 4th Defendants; and that the application was an abuse of process. The sole issue was whether the Plaintiff should be cited for contempt. Relying on the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, the Court found the 24th September 2021 orders conditional and ambiguous as to whether they bound all Defendants, and that the Notice of Appeal's validation was unconfirmed. No breach was established. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiff breached the orders of 24th September, 2021

Holding

No breach established; the orders were conditional on validation of the 2nd Defendant's Notice of Appeal and did not clearly extend to the 3rd Defendant

Reasoning

The Court noted the stay orders were pegged on the Court of Appeal validating the 2nd Defendant's Notice of Appeal, which was never confirmed. Earlier orders of 19th March 2021 against the 1st, 3rd and 4th Defendants had not been set aside, and the 3rd Defendant never sought his own stay. Given the ambiguity as to whether the 24th September 2021 orders applied to all Defendants, the contempt elements of clear terms and deliberate breach were not proved.

p. 4

Legal principles established

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  • To establish civil contempt, the applicant must prove the terms of the order were clear and unambiguous and binding, that the defendant had knowledge or notice, acted in breach, and that the breach was deliberate
  • A person not a party against whom a judgment or order may be enforced is liable to the same process of enforcement as if he were a party
  • Punishment for contempt under Section 29 of the Environment and Land Court Act carries a fine not exceeding twenty million shillings or imprisonment not exceeding two years, or both

Court orders

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  1. 1.The 3rd Defendant/Applicant's Notice of Motion application dated 29th September, 2023 is dismissed as unmerited
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Judicature ActSection 5
  • Civil Procedure ActSection 63
  • Environment and Land Court ActSection 29

Cases cited (1)

  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Article 40 of the Constitution, Section 5 of the Judicature Act and Section 63 of the Civil Procedure 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, "Nyali Beach Cycads Limited v Guchu & 3 others (Environment & Land Case E002 of 2020) [2024] KEELC 6961 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6961/eng@2024-10-17

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