Muthui & 19 others v County Government of Kitui & 7 others (Environment & Land Petition 26 of 2021) [2025] KEELC 909 (KLR)
The bottom line
#Three senior Kitui County officials were found guilty of disobeying a court order on sand harvesting and must appear for sentencing in April 2025.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is filed under the correct provisions of the law.
- 2.Whether the Counsel for the applicants can competently swear the affidavit in support of the application herein.
- 3.Whether the Respondents are guilty of contempt of the court judgement dated 22nd February 2023.
- 4.Are the Applicants entitled to the orders they seek?
- 5.Who will bear the costs of the application?
Key legal issues
#Whether the application founded on the unconstitutional Contempt of Court Act and wrong CPR provisions should be struck out
Not struck out; wrong provisions are not fatal.
The Court accepted that the Contempt of Court Act was declared unconstitutional and that the cited Civil Procedure Rules provisions were inapposite, but invoked the principle that procedural mislabelling should not defeat substantive justice, relying on the Court of Appeal in Kenya Trypanosomiasis Research Institute and Article 159(2)(d).
Whether an advocate with conduct of the matter may swear the supporting affidavit
Yes, for agreed, uncontested or purely legal matters; but paragraphs 8, 9 and 10, containing contested averments without sources, were struck out.
Precedents establish that an advocate is not barred from swearing affidavits on formal or non-contentious matters, but contested facts must be deponed to by someone with knowledge or with sources and grounds of belief disclosed. The impugned paragraphs failed that test.
Whether service requirements for contempt were met
Knowledge through advocates suffices; NEMA, unserved and unrepresented, could not be cited.
Following Shimmers Plaza and Basil Criticos, the Court held that knowledge of an order by a party's advocate dispenses with proof of personal service. The advocates on record for the 1st, 2nd, 5th and 6th Respondents were in court at judgment; the Decree was served on the County Assembly and A.M Kilonzi Advocates. NEMA had no service or representation.
Whether the Respondents were guilty of contempt
The 1st, 2nd and 3rd Respondents were guilty of contempt of orders (b), (d) and (f); the 5th and 6th were not; claims against individual members and NEMA dismissed.
The 1st and 2nd Respondents never showed they supplied the information ordered; no compliance report was filed and no rehabilitation measures reported, despite the enactment of the Kitui County River Basin Sand Utilization and Conservation Act. Goodwill did not negate wilful disobedience of clear orders.
Legal principles established
#- Filing an application under the wrong provisions of law is not per se fatal and will not warrant dismissal where no injustice results.
- Knowledge of an order by a party's advocate suffices for contempt proceedings; personal service is not always necessary.
- Contempt is quasi-criminal and must be proved to a standard higher than balance of probabilities; wilful and deliberate disobedience must be shown.
- Demonstrating goodwill and steps towards compliance does not excuse disobedience of a clear order to comply and report within a set period.
Court orders
#- 1.The claim against the persons appearing at paragraph 2 (e) to (k) and paragraph 3 (e)–(k) of the application dated 29/5/2023 is dismissed.
- 2.The claim against the 4th Respondent National Environment Management Authority (NEMA) is dismissed.
- 3.The County Secretary, County Government of Kitui; the CEC Member for Energy, Environment, Forestry, natural and mineral resources; and the Clerk, County Assembly of Kitui are cited for contempt of court for disobeying orders No. (b), (d) and (f) of the judgment dated 22nd February 2023 and the decree thereof.
- 4.Summons to issue to the cited persons to appear before the judge at Kitui ELC for mitigation and sentencing on 2nd April 2025.
- 5.Paragraphs 8, 9 and 10 of the supporting affidavit sworn on 29th May 2023 are struck out.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Contempt jurisdiction under section 5 of the Judicature Act (Cap 8) as read with English Civil Procedure Rules and Article 162(2) of the Constitution; petition governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Contempt citation against the seven honourable members (paragraphs 2(e)–(k) and 3(e)–(k))
The averments supporting the claim against them were in paragraphs 8, 9 and 10 of the advocate's affidavit, which were struck out, leaving the claim unsupported.
Contempt citation against the 4th Respondent, NEMA
No evidence of service of the decree on NEMA and it was not represented when judgment was delivered.
Contempt citation against the 5th and 6th Respondents (County Police Commander and officer commanded)
Their explanation that the information sought was not in their custody was accepted as adequate compliance with order (d).
Costs
No costs order expressly made in the final orders; counsel for the 3rd and 9th–14th Respondents had suggested each party bear their own costs under Rule 26(i) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, but the ruling does not record a costs disposition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The following persons are hereby cited for contempt of court for disobeying orders No. (b), (d) and (f) of this court's judgment dated 22nd February 2023 and the decree thereof;
The Court further directs that summons be issued to the above- mentioned persons to appear before the judge at Kitui ELC for mitigation and sentencing on 2nd April 2025.
The claim against the persons appearing at paragraph 2 (e) to (k) and paragraph 3 (e) – (k) of the application dated 29/5/2023 is hereby dismissed.
The claim against the 4th Respondent National Environment Management Authority (NEMA) is hereby dismissed.
It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt.
The law has changed and as it stands today knowledge supersedes personal service and for good reason.
Issues in the judgment
#The order numbering in the citation of contemnors skips letter (c) – after listing (b) the CEC Member, the list goes directly to (d) the Clerk, County Assembly of Kitui; the Speaker of the County Assembly is not listed among those cited despite order (b) of the decree concerning the 1st–4th Respondents.
The costs issue was framed for determination (issue (e)) and Rule 26(i) submissions were made, but the final orders contain no express costs order.
The ruling states it found the 1st, 2nd & 3rd Respondents in contempt of orders (b) and (f), and also finds the 1st and 2nd Respondents guilty of contempt of order (d); the citation order lists three office-holders (County Secretary, CEC Member, Clerk) by office without expressly mapping them to respondent numbers, and omits the Speaker.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthui & 19 others v County Government of Kitui & 7 others (Environment & Land Petition 26 of 2021) [2025] KEELC 909 (KLR)", Case Analysis (2025). Notice of Motion dated 29th May 2023 in Petition dated 11th September 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/909/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.