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ELCDismissedApplication dated 1/3/2024 in the main petition (Petition dated 20/12/2023)· [2025] KEELC 308 (KLR)

Kimechwa v County Land Adjudication & Settlement Officer, Trans Nzoia & 3 others; Simeon (Interested Party) (Environment & Land Petition E002 of 2023) [2025] KEELC 308 (KLR)

Environment and Land Court
3 February 2025
2,846 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kitale dismissed a contempt application because the applicant couldn't prove the other party was served with, or knowingly disobeyed, the court order.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale on a contempt application dated 1/3/2024 brought by Joseph Kimechwa against the interested party, Alice Mokeira Simeon, seeking a finding that she was guilty of contempt of status quo orders issued on 27/12/2023 and denial of her right of audience. The Applicant alleged that after the order was served, the interested party ploughed the suit land, replaced his fence and constructively evicted him from plot Trans Nzoia/Zea/292 in the Zea Settlement Scheme. The interested party denied being served, contended she was the bona fide allottee and title holder who had been in occupation, and that the status quo order preserved her possession. The court, guided by Section 29 of the ELC Act and the Judicature Act, set out the four ingredients of contempt: clear terms of the order, knowledge of it, breach, and willful and deliberate disobedience, all to be proved to a standard higher than a balance of probabilities but below beyond reasonable doubt. The court held that the status quo order preserved whoever was in occupation at the time of issuance, and the Applicant's own pleadings admitted an invasion and fencing before the application was filed, so the order could not be read as restoring him to the land. Service on an alleged agent ('Mr. Dan') was not proved, the nexus between that person and the interested party was not established, and the photographic evidence was unauthenticated, lacking a certificate under Section 106B of the Evidence Act and thus of no probative value. The court found no willful and deliberate breach established and dismissed the application with costs on 3/2/2025.

Key legal issues

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01

Proof of service and knowledge of the court order

Holding

Service on an alleged agent ('Mr. Dan') was not proved; personal service and knowledge by the interested party were not established.

Reasoning

The affidavit of service was scanty; it did not show how the process server knew 'Dan' was authorised to receive service for the interested party, nor the exact locality of service. The nexus between the alleged manager/caretaker and the interested party was not established, so personal service and knowledge were not proved.

p. 5
02

Meaning and scope of the status quo order

Holding

The status quo order preserved the occupation existing at the time of issuance and could not be read as restoring the Applicant to the land and removing the interested party.

Reasoning

The parties disagreed on who was on the land as at 27/12/2023. The Applicant's own pleadings admitted an invasion and fencing had occurred a week before 20/12/2023. The reply of the 1st respondent attached a ground and status report clarifying the position. The order therefore preserved the person in occupation and did not mandate restoration of the Applicant.

p. 4
03

Proof of willful and deliberate disobedience

Holding

The Applicant failed to adduce evidence of probative value linking the interested party to willful and deliberate breach of the order.

Reasoning

The photographs were undated, unauthenticated and lacked a certificate under Section 106B of the Evidence Act. The Applicant did not show the interested party personally or through known agents evicted him contrary to the order. Contempt being quasi-criminal, incriminating evidence of sufficient probative value was required.

p. 5

Legal principles established

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  • A party seeking contempt orders must establish: (1) clear and unambiguous terms of the order; (2) knowledge of the order by the respondent; (3) breach; and (4) willful and deliberate failure to obey.
  • The standard of proof in contempt proceedings is higher than a balance of probabilities but not beyond reasonable doubt.
  • A status quo order preserves the position existing on the ground when it is issued; the person in occupation remains and is not to be evicted, and such an order does not restore one party to the land at the expense of the other.
  • Electronic/photographic evidence must be accompanied by a certificate under Section 106B of the Evidence Act; unauthenticated photographs lack probative value.

Court orders

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  1. 1.The application dated 1/3/2024 is dismissed
  2. 2.Costs of the application to the Applicant's opponents (costs awarded against the Applicant)

Authorities

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Legislation

  • Judicature ActSection 5
  • Environment and Land Court ActSection 29
  • Evidence ActSection 107
  • Evidence ActSection 106B(2) and (3)
  • Civil Procedure RulesOrder 5 Rules 1, 6, 13 and 15
  • ELC Practice Directions No. 28(K) in Gazette No. 5178 of 2014No. 28(K)

Cases cited (17)

  • Daniel Nderi Njogu -vs- Lydia Muthomi Kibage
    [2010] eKLR
  • Hadkinson -vs- Hadkinson
    [1952] ALL ER 567
  • Republic -vs- Kitui County Government Exparte Fairplan Systems Ltd
    [2022] eKLR
  • Mutitika -vs- Baharini Farm Ltd
    [1985] KLR 229
  • Cecil Miller -vs- Jackson Njeri & Another
    [2017] eKLR
  • Republic -vs- Ahmed Abolfathi Mohammed & Another
    [2018] eKLR
  • Christine Wangari Gachaga -vs- Elizabeth Wanjiku Evans & Others
    [2014] eKLR
  • Shimmers Plaza Ltd vs Nairobi Ltd, NRB C.O.A. No. 33 of 2012
  • Refrigeration and Kitchen Utensils Ltd -vs- Gulabehead Popatalal Shah & Another
    Civil Application No. 39 of 1990
  • Katsuri Ltd -vs- K.D. Shah
    [2016] eKLR
  • Woburn Estate Ltd -vs- Margaret Bashforth
    [2016] eKLR
  • Joel Mungambi Mukira & Others -vs- County Government of Nyeri
    [2019] eKLR
  • Joel Kipkurui Arap Koech -vs- Alice Wambui Magandu & Others
    [2018] eKLR
  • Stephen K. Sang & Another -vs- Chebii Boiyo & Another
    [2021] eKLR
  • Aggrey Wafula -vs- Public Service Commission & Another
    [2022]
  • Kenya National Union of Nurses -vs- County Government of Meru & Another
    [2022] eKLR
  • Basil Criticos -vs- Attorney General & Others
    [2012] eKLR
Jurisdiction invoked
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, "Kimechwa v County Land Adjudication & Settlement Officer, Trans Nzoia & 3 others; Simeon (Interested Party) (Environment & Land Petition E002 of 2023) [2025] KEELC 308 (KLR)", Case Analysis (2025). Application dated 1/3/2024 in the main petition (Petition dated 20/12/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/308/eng@2025-02-03

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