Namianya & 2 others v CECM Lands, Urban Planning, Housing and Municipalities - Bungoma County & 5 others (Constitutional Petition E003 of 2024) [2024] KEELC 7440 (KLR)
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
#Key legal issues
#Whether the application was properly before the court despite invocation of the unconstitutional Contempt of Court Act, 2016
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.
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.
Whether the supporting affidavit sworn by Rose Nandako Namianya without authority of the 2nd Petitioner was defective
The affidavit was competent; any party with relevant information can swear a supporting affidavit.
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.
Whether the Respondents were in contempt of the orders of 14th February 2024 and 25th April 2024
No contempt established; the Petitioners failed to prove willful disobedience to the required standard.
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.
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.The Notice of Motion application dated 25/05/2024 is dismissed with each party to bear their own costs.
- 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.