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ELCDismissedNot stated in judgment· [2024] KEELC 7292 (KLR)

Mabeya & another v Nairobi City County Government & another (Environment & Land Petition E006 of 2024) [2024] KEELC 7292 (KLR)

Environment and Land Court
31 October 2024
3,825 words in judgment
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The bottom line

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A Kenyan court refused to jail officials for allegedly ignoring orders stopping construction because the applicants named the wrong officer and had weak evidence.

What this practically means

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Executive summary

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The Petitioners moved the Environment and Land Court by Notice of Motion dated 15th August 2024 seeking committal to civil jail of the County Executive Committee Member for Built Environment of the 1st Respondent county government and the Director of the 2nd Respondent for disobeying injunctive orders of 20th May 2024, extended on 15th July 2024, restraining construction on Plot 36/1/777 Eastleigh. The CECM, Mr Patrick Mbogo, replied that he was wrongly cited, not personally served, not bound by the orders and that contempt being quasi-criminal admits no vicarious liability. The 2nd Respondent's Director, Abdifatah Mohamed Gedi, swore that no construction had occurred since the orders and that the application was false and defamatory. The court framed a sole issue: whether the Respondents were in contempt. It restated the elements of civil contempt and the elevated quasi-criminal standard of proof, holding that knowledge of an order suffices without personal service, the orders having been issued in the presence of all parties' counsel. However, following Lapana Limited and the Koceyo decision, it found the County Secretary, not the CECM, is the officer answerable for disobedience of court orders by a county government, and the orders imposed no enforcement duty on the Built Environment department. As to the 2nd Respondent, the applicants' photographs were inadequate and unaccompanied by a certificate of electronic evidence, so breach was not proved to the required standard. The application was dismissed with costs on 31st October 2024 by O. A. Angote, Judge.

Key legal issues

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01

Elements and standard of proof in civil contempt

Holding

Contempt must be proved to a standard higher than balance of probabilities but not beyond reasonable doubt, on proof of four elements.

Reasoning

The court held contempt proceedings quasi-criminal, so the committal power affects liberty and must be exercised with utmost care as a last resort. It adopted the Supreme Court's exposition in Republic v Ahmad Abolfathi Mohammed quoting Mutitika v Baharini Farm, and the four-element test from Contempt in Modern New Zealand as applied by Mativo J.

p. 4
02

Whether personal service of orders is mandatory for contempt

Holding

Knowledge of an order displaces the requirement of personal service.

Reasoning

Relying on Shimmers Plaza and Woburn Estate, the court noted jurisprudence has moved away from insisting on personal service. Orders made in the presence of a party's advocate create a presumption the client is aware of them. Both respondents' orders were issued in the presence of counsel.

p. 6
03

Whether the CECM Built Environment was the proper party to cite

Holding

The claim against the 1st Respondent failed; the proper county officer for contempt is the County Secretary, and no enforcement duty was placed on the CECM's department.

Reasoning

Following Lapana Limited v County Government of Trans-Nzoia and Republic v County Secretary, Nairobi City County, the court held the County Secretary bears responsibility for compliance with court orders. The orders restrained construction; they did not direct the Built Environment department to enforce them, nor was the County shown to be constructing.

p. 7
04

Whether the 2nd Respondent breached the orders

Holding

The applicants failed to prove breach; the photographs were inadequate absent certification as electronic evidence.

Reasoning

Although GMM4 showed a building several floors up, the photos did not establish that it depicted the suit property or when the construction occurred, and they were not accompanied by a certificate of electronic evidence, so the contempt standard was not met.

p. 8

Legal principles established

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  • The applicant in civil contempt must prove four elements: clear and unambiguous binding terms of the order, knowledge of the order, breach, and deliberate conduct, to a standard higher than balance of probabilities but below beyond reasonable doubt.
  • Knowledge of a court order suffices for contempt purposes; personal service is not mandatory.
  • Disobedience of court orders against a county government is visited in the first instance on the County Secretary, not an individual CECM.

Court orders

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  1. 1.The application dated 15th August, 2024 is unmerited and is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Judicature ActSection 5(1)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51(10)
  • Contempt of Court Act, 2016Repealed
  • Environment and Land Court ActSection 29
  • County Government Act, Act No. 17 of 2012Section 44(3)

Cases cited (12)

  • Republic vs Ahmad Abolfathi Mohammed & another
    [2019] eKLR
  • The Kenya Human Rights Commission vs Attorney General & Another
    [2018] eKLR
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Mutitika v. Baharini Farm Limited
    [1985] KLR 229
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    (2016) eKLR
  • Republic vs Attorney General & another Exparte Mike Maina Kamau
    [2020] eKLR
  • Justus Kariuki Mate & Another vs Hon. Martin Wambora
    supra
  • Basil Criticos vs Attorney General and 8 Others
    [2012] eKLR
  • Woburn Estate Limited vs Margaret Bashforth
    [2016] eKLR
  • Refrigeration and Kitchen Utensils Ltd vs Gulabchand Popatlal Shah & Another
    Nairobi Civil Application No.39 of 1990
  • Lapana Limited vs County Government of Trans-Nzoia
    (Environment & Land Case 8 of 2023) [2024] KEELC 45 (KLR)
  • Republic -vs- County Secretary, Nairobi City County & 3 others; Koceyo & Co. Advocates (Ex Parte)
    [2020] eKLR
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Section 5(1) of the Judicature Act; Sections 1A, 1B, 3A of the Civil Procedure Act; Order 51(10) of the Civil Procedure Rules

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, "Mabeya & another v Nairobi City County Government & another (Environment & Land Petition E006 of 2024) [2024] KEELC 7292 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7292/eng@2024-10-31

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