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ELCDismissedNot stated in the excerpt (Petition with Notice of Motion dated 9th September 2024)· [2024] KEELC 7479 (KLR)

Sikalieh (Being Chairman of and suing in public interest an on behalf of Karen Langata District Association) v Kenya Railways Corporation & 5 others; National Environment Management Authority & another (Interested Parties) (Environment & Land Petition E028 of 2024) [2024] KEELC 7479 (KLR)

Environment and Land Court of Kenya
7 November 2024
AOA. OMOLLO
1,841 words in judgment
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The bottom line

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The court refused to jail or fine Kenya Railways-linked officials for contempt because photographs alone did not prove they defied an order stopping construction.

What this practically means

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Executive summary

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This was a contempt-of-court application by Notice of Motion dated 9th September 2024, brought under section 5 of the Judicature Act and section 63 of the Civil Procedure Act, seeking the committal to civil jail and/or imposition of personal fines on four named individuals - Phillip J. Mainga (Managing Director of the 1st Respondent), Mishek Waititu (Contract Manager), and Hon. David Chirchir and Mohamed Daghar - for disobedience of an order of 15th August 2024 issued by Omollo J restraining activities and construction on a project at the Department of Veterinary Services farm at Ngong. The petitioner relied on photographs said to show ongoing construction on 16th August, 26th August and 5th September 2024. Eng. Waititu and Mr. Mainga filed replying affidavits denying any construction works within their mandate - the 2nd and 3rd Respondents being consultants for the ESIA and Resettlement Action Plan only - and attacking the probative value of the photographs, noting the absence of date-time stamps and any identifiable ongoing activity. The court restated that contempt is quasi-criminal and that the applicant must prove the terms of the order, knowledge of those terms, and non-compliance to a standard above the balance of probabilities. Examining the photographs, the court found close similarity between the images of 16th August and 5th September 2024, no visible additional works, no identifiable human activity, and concluded the evidence fell below the required threshold. The application dated 9th September 2024 was dismissed with costs in the cause.

Key legal issues

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01

Whether contempt was proved to the applicable standard

Holding

Dismissed - disobedience was not proved to the required standard

Reasoning

Contempt proceedings are quasi-criminal, engaging liberty, so the standard of proof is higher than balance of probabilities. The petitioner relied solely on photographs. The court compared the photos of 16th August and 5th September 2024 and found close similarity, no identifiable ongoing activities, no human activity, and no proof of new works, so the evidence fell below the threshold required.

p. 5
02

Elements of civil contempt

Holding

Applied the three-element test from Samuel M. N. Mweru v National Land Commission

Reasoning

The court adopted the established test requiring proof of the terms of the order, knowledge of those terms by the respondent, and failure to comply. Although the order of 15th August 2024 restraining activities on the project was clear and its terms and knowledge not seriously contested, the third element - failure to comply - was not proved on the evidence.

p. 5

Legal principles established

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  • The applicant in civil contempt proceedings must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply; and contempt being quasi-criminal, the standard of proof exceeds the balance of probabilities

Court orders

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  1. 1.The application dated 9th September 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Judicature Actsection 5
  • Civil Procedure Actsection 63
  • Environment and Land Court Actsection 29
  • Civil Procedure RulesOrder 40 rule 3(1)

Cases cited (2)

  • Mutitika vs Baharini Farm Ltd
    (1985) eKLR
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act and section 63 of the Civil Procedure Act; section 29 of the Environment and Land Court Act; Order 40 rule 3(1) 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, "Sikalieh (Being Chairman of and suing in public interest an on behalf of Karen Langata District Association) v Kenya Railways Corporation & 5 others; National Environment Management Authority & another (Interested Parties) (Environment & Land Petition E028 of 2024) [2024] KEELC 7479 (KLR)", Case Analysis (2024). Not stated in the excerpt (Petition with Notice of Motion dated 9th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7479/eng@2024-11-07

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