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ELCDismissedMotion dated 24th May, 2024 in the Petition (ELC, Nairobi)· [2025] KEELC 965 (KLR)

Ndambiri & another v Nairobi Metropolitan Services & 19 others (Environment & Land Petition E026 of 2022) [2025] KEELC 965 (KLR)

Environment and Land Court
27 February 2025
OAO. A. Angote
4,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a contempt application because the main case it depended on had already been dismissed, making the requested demolition orders pointless.

What this practically means

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Executive summary

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The Petitioners/Applicants moved the Environment and Land Court by a Motion dated 24th May 2024 seeking a finding that eight named persons were guilty of further and continuing contempt of the court's injunctive orders of 25th May 2023, which had restrained further construction on L.R No 209/7549, City Park Drive, Parklands. They sought orders compelling the disconnection and demolition of a concrete culvert and sewer pipes, restoration of the building to its skeletal 11th-floor state, an injunction against occupation and use of the structures, police enforcement and costs. The Respondents denied further contempt: the County officials (1st-6th Respondents) showed they had been pardoned on 30th July 2024, having been barred from the site by armed police engaged by the 13th-16th Respondents, and that they sought extraction of the orders to comply; the 13th-16th Respondents claimed the drainage works were an emergency response to flooding, that the applicants' evidence was fabricated, and that the Motion was overtaken by events and would amount to double punishment. The court framed a single issue: whether the alleged contemnors were in further contempt and what orders should issue. It held that fresh contempt proceedings for post-January 2024 acts were permissible, that the electronic evidence was properly certified under Section 106B of the Evidence Act, but that its own judgment of 10th December 2024 had dismissed the Petition and vacated the conservatory orders underpinning the contempt application. The relief sought was therefore moot and could not issue. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the alleged contemnors were in further contempt of the orders of 25th May 2023

Holding

The court did not make a definitive finding of further contempt because the intervening dismissal of the Petition on 10th December 2024 rendered the application moot

Reasoning

The applicants alleged continued construction after the January 2024 contempt ruling. However, before determination, the court delivered judgment on 10th December 2024 dismissing the Petition and vacating the conservatory orders which formed the basis of the contempt application. Since the orders sought (demolition, restoration, injunction) depended on the subsistence of those conservatory orders, they could no longer issue.

p. 9
02

Whether determination of the Motion would amount to re-prosecution/double jeopardy

Holding

No - the prior sentencing related only to acts covered by the 25th January 2024 Ruling

Reasoning

The 13th-16th Respondents argued the Motion was overtaken by their sentencing and would amount to double punishment. The court held that mitigation and sentencing concerned only the contempt found in the January 2024 Ruling, and any subsequent acts could be separately determined.

p. 8
03

Admissibility of electronic evidence (photos and CCTV extracts)

Holding

Electronic evidence must satisfy Section 106B conditions and be accompanied by the required certificate; the Petitioners did provide such a certificate

Reasoning

The court set out Section 106B of the Evidence Act and the certificate requirement, noting reliance on Benson Mugatsia v Cornel Rasanga Amater. It observed that the Petitioners had tendered the certificate of electronic evidence for the photos annexed to specified affidavits, satisfying the admissibility threshold.

p. 9

Legal principles established

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  • Acts occurring after a first contempt ruling may be the subject of a fresh contempt determination and do not amount to re-prosecution or double punishment
  • Electronic evidence is admissible under Section 106B of the Evidence Act only where the prescribed conditions and certificate are satisfied
  • Orders predicated on conservatory orders that have been vacated become moot

Court orders

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  1. 1.The application dated 24th May, 2024 is dismissed with no order as to costs

Authorities

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Legislation

  • Environment and Land Court ActSections 13(1), (2), (3) and (7), 14 and 29
  • Environmental Management and Co-ordination ActSection 3(3)
  • Judicature ActSection 5
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules 2010Order 22 Rule 28
  • Evidence Act (Cap 80)Section 106B
  • Local Government Adoptive By-Laws Building Order 1968

Cases cited (2)

  • Benson Mugatsia vs Cornel Rasanga Amater
    Election Petition 2 of 2012
  • Republic vs Berisa Wayu Matuguda
    Criminal Case No.6 of 2008
Jurisdiction invoked
Sections 13(1), (2), (3) and (7), 14 and 29 of the Environment and Land Court Act; Section 3(3) of the Environmental Management and Co-ordination Act; Section 5 of the Judicature Act; Section 3A of the Civil Procedure Act and Order 22 Rule 28 of the Civil Procedure Rules 2010

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, "Ndambiri & another v Nairobi Metropolitan Services & 19 others (Environment & Land Petition E026 of 2022) [2025] KEELC 965 (KLR)", Case Analysis (2025). Motion dated 24th May, 2024 in the Petition (ELC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/965/eng@2025-02-27

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