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ELCDismissedNot stated in the extract (Notice of Motion dated 19th September, 2024)· [2025] KEELC 33 (KLR)

Mbugua v County Government of Nakuru & another (Environment & Land Case 111 of 2024) (Environment and Land) [2025] KEELC 33 (KLR)

Environment and Land Court of Kenya
16 January 2025
MOM.C. Oundo
2,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner failed to jail a Nakuru County official for contempt because an interim injunction preserves property — it does not force approvals.

What this practically means

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Executive summary

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The Applicant, Francis Macharia Mbugua, moved the Environment and Land Court at Naivasha by a Notice of Motion dated 19th September, 2024 seeking contempt proceedings against the CEC for Lands, Physical, Housing & Urban Development of Nakuru County for allegedly failing to comply with the court's orders of 11th July, 2024, which had injuncted the Defendants from interfering with parcel Naivasha/Municipality Block 5/227 pending the hearing of the main suit. He sought an order that the CEC purge his contempt by issuing subdivision approvals, or alternatively that summons issue for him to show cause why he should not be committed to civil jail. The 1st Defendant, through the acting Director of Physical Planning, opposed the application, explaining that the Plaintiff's subdivision application had been deferred on 23rd January, 2024, before the orders issued, owing to an ongoing investigation into the allocation of the suit property, and that since service of the order on 3rd September, 2024 it had not interfered with the property. Applying the Burchell test and the Supreme Court's guidance in Republic v Ahmad Abolfathi Mohammed, M.C. Oundo J held that the refusal to approve subdivision did not fall within the ambit of the interim preservation orders and, if anything, was in compliance with them, and that no evidence showed any change in the state of the property caused by the Defendants in disobedience of the orders. The application was found to have no merit and was dismissed with costs on 16th January, 2025.

Key legal issues

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01

Whether the 1st Defendant's refusal to approve subdivision amounted to contempt of the injunction of 11th July, 2024

Holding

No. The refusal did not breach the orders; if anything it was consistent with them, and no evidence of interference with the suit property was shown

Reasoning

The injunction of 11th July, 2024 was an interim preservation order restraining the Defendants from interfering with the suit property pending hearing of the main suit. The Plaintiff alleged contempt based on refusal to approve subdivision and change of use. The court found that such refusal was not within the scope of the orders, that the application for approval had been made and deferred before the orders issued, and that no evidence demonstrated any change in the state of affairs of the property caused by the Defendants in disobedience of the orders.

p. 5
02

Whether the Applicant met the threshold for civil contempt

Holding

No. The elements of wilful, deliberate breach were not established

Reasoning

Relying on Kristen Carla Burchell v Barry Grant Burchell and Republic v Ahmad Abolfathi Mohammed, the court reiterated that an applicant must prove the terms of the order, knowledge of them, and failure to comply, and that the conduct must be deliberate and wilful. The Applicant did not demonstrate that the Respondent's conduct was a deliberate flouting of the order; the power to commit being a last resort, the application failed.

p. 5

Legal principles established

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  • To succeed in civil contempt proceedings the Applicant must prove the terms of the order, knowledge of those terms by the Respondent, and failure by the Respondent to comply
  • The power to commit for contempt must be exercised with utmost care and only as a last resort, requiring proof of deliberate, wilful flouting of a court order
  • Interim injunctive orders preserving the substratum of a suit do not compel a public body to grant development approvals; refusal to approve does not breach such orders

Court orders

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  1. 1.The Notice of Motion dated 19th September, 2024 is dismissed with costs

Authorities

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Legislation

  • Judicature ActSection 35(1)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 40 Rule 3(1)
  • Constitution of KenyaArticle 186; Part 2 of the 4th Schedule, Section 8
  • Physical and Land Use Planning Act, 2019Sections 56(a) and (b), 57(1)
  • Environment and Land Court ActSection 29

Cases cited (4)

  • Samuel M.N Mweru & Others v National Land Commission & 2 Others
    [2020] eKLR
  • James Muchina Wandutu v County Government of Muranga & 5 others
    [2019] eKLR
  • Kristen Carla Burchell vs Barry Grant Burchell, Eastern Cape Division Case No. 364 of 2005
  • Republic v Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B, 3A of the Civil Procedure Act and Section 35(1) of the Judicature Act; contempt under Order 40 Rule 3(1) of the Civil Procedure Rules and Section 29 of the Environment and Land Court 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, "Mbugua v County Government of Nakuru & another (Environment & Land Case 111 of 2024)  (Environment and Land) [2025] KEELC 33 (KLR)", Case Analysis (2025). Not stated in the extract (Notice of Motion dated 19th September, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/33/eng@2025-01-16

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