Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2024] KEELC 7440 (KLR)

Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 7440 (KLR)

Environment and Land Court
31 October 2024
4,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

The Bungoma Environment and Land Court dismissed a contempt claim against Bungoma County because undated photographs and no expert evidence failed to prove willful disobedience of court orders.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Bungoma determined the Petitioners' Notice of Motion dated 25th May 2024 seeking contempt findings against the Respondents for disobedience of conservatory orders issued on 14th February 2024 and 25th April 2024 restraining trespass, vandalism and demolition on KANDUYI/20, PLOT NO.12A. The Petitioners sought committal to civil jail, an order that the 3rd Respondent deposit monies equivalent to the value of demolished properties, compensation, and personal liability against the 1st and 2nd Respondents. The Respondents opposed, arguing that the Contempt of Court Act, 2016 had been declared unconstitutional, that the application was incompetent, that the supporting affidavit lacked authority, and that the Petitioners had not proved contempt to the requisite standard. The court held that the applicable law had reverted to Section 5 of the Judicature Act, and that a Notice of Motion serves the same purpose as an Application Notice, choosing substantive justice over procedural technicality. It also held that any party with relevant information may swear a supporting affidavit. On the merits, the court found that although the 1st, 2nd, 3rd and 6th Respondents knew of the orders through their advocates, the Petitioners' photographs lacked dates, did not show the structures were on the suit property, and no surveyor's report, machinery identification or witness evidence linked the demolition to the Respondents. The County Government, being a body corporate, could not be committed to civil jail. The application was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the application was properly before the court despite invocation of the unconstitutional Contempt of Court Act, 2016

Holding

The application was proper; the applicable law reverted to Section 5 of the Judicature Act and the Notice of Motion is treated as equivalent to an Application Notice under the English Civil Procedure Rules; the court chose substantive justice over procedural technicality.

Reasoning

The court accepted that the Contempt of Court Act, 2016 was declared unconstitutional, leaving Section 5 of the Judicature Act as the applicable law. The procedure thereunder (via English practice) is an Application Notice, which serves the same purpose as a Notice of Motion. Finding no prejudice or deficiency, and guided by Article 159 of the Constitution, the court declined to defeat the application on procedural technicality.

p. 6
02

Whether the supporting affidavit sworn by Rose Nandako Namianya without authority of the 2nd Petitioner was defective

Holding

The affidavit was competent; any party with relevant information can swear a supporting affidavit.

Reasoning

The court held that a supporting affidavit is evidence, and the 1st Petitioner was not a stranger to the proceedings; she deposed to matters within her knowledge. Dismissing the application on that basis would be draconian given the constitutional mandate to facilitate just, expeditious and proportionate resolution of civil disputes.

p. 6
03

Whether the Respondents were in contempt of the orders of 14th February 2024 and 25th April 2024

Holding

No contempt established; the Petitioners failed to prove willful disobedience to the required standard.

Reasoning

Although knowledge of the orders was attributable to the 1st, 2nd, 3rd and 6th Respondents through their counsel's presence when the orders issued (the 4th and 5th Respondents not being shown to have been served), the photographs lacked dates/times, did not show the demolished structures were on the suit property, and no surveyor's report or identification of machinery or individuals linked the demolition to the Respondents. The burden of proof was not discharged.

p. 9

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than a balance of probabilities but lower than beyond reasonable doubt, and the key elements are knowledge of the order and willful contravention of it.
  • A body corporate such as a county government cannot be committed to civil jail for contempt.

Court orders

#
  1. 1.The Notice of Motion application dated 25/05/2024 is dismissed with each party to bear their own costs.

Authorities

#

Legislation

  • Contempt of Court ActSections 2, 4(1)(a), 5, 28, 34
  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3; Order 51 Rule 1
  • Judicature ActSection 5
  • Constitution of KenyaArticles 159(2)(e), 6, 10, 118(b)
  • Public Holidays ActCap 110
  • Evidence ActSection 107(1)

Cases cited (22)

  • Hadkinson vs. Hadkinson
    1952 2 ALL ER 56
  • Republic vs. County Chief Officer, Finance and Economic Planning, Nairobi City County Ex Parte Stanley Muturi
  • Republic vs. Ahmad Abolfathi Mohammed & Another
    (2018) eKLR
  • Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
    (2005) 1 KLR 828
  • Mutitika vs. Baharini Farm Limited
    (1985) KLR 229, 234
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • John Muthui & 19 others v County Government of Kitui & 7 others
    [2020] eKLR
  • Hamdia Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others
    [2019] eKLR
  • Michael Mungai v Housing Finance Co. (K) Ltd & 5 others
    [2017] eKLR
  • Ephraim Mbae & 2 others v Gilbert Kabeere M'mbijiwe & 2 others
    (2013) eKLR
  • Savala & another v Ndanyi
    (Environment and Land Case Civil Suit 248 of 2021) [2022] KEELC 2536 (KLR)
  • Ndungu Mugoya & 473 others v Stephen Wangombe & 9 others
    [2005] eKLR
  • Githaiga & 5 Others vs. Kiru Tea Factory Company LTD
    (2023) eKLR
  • Mbui & another v Mbui
    (Environment & Land Case 154 of 2017) [2022] KEELC 2203 (KLR)
  • Samuel M. N. Mweru & others v National Land Commission & 2 others
    [2020] eKLR
  • James Mumiu Mucheru v National Bank of Kenya Ltd
    [2019] eKLR
  • Refrigerator & Kitchen Utensils Ltd –Vs- Gulabchand Popatial Shah & Others
    Civil Appln. No. 39 of 1990
  • Gatharia Mitika & Others –Vs- Baharini Farm Ltd
    Civ. Appln. No. 24 of 1995
  • Gatharia K. Mutikika – vs Baharini Farm Ltd
    [1985] KLR 227
  • Oilfield Movers Ltd – Vs – Zahara Oil & Gas Limited
    [2020] eKLR
  • Shimmers Plwaza Limited vs National Bank of Kenya
    (2015) eKLR
  • Mahinderjit Singh Bitta – Vs Union Of India & Others
    1a No 100 of 2010
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Section 5 of the Judicature Act, Article 159(2)(e) of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 7440 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7440/eng@2024-10-31

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