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ELCDismissedNot stated in the judgment (ELC suit, Environment and Land Court, Kwale)

Mwarika v Mlaji & 2 others (Environment & Land Case 47 of 2022) [2025] KEELC 1316 (KLR)

Environment and Land Court
11 March 2025
2,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail a landowner for disobeying court orders because the photographic evidence was not properly certified, showing contempt claims demand rigorous proof.

What this practically means

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Executive summary

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The Defendants/Applicants, Mkulu Mlaji Shuweya Bakari and Grace Ritara, brought a Notice of Motion dated 16th January 2025 seeking the committal to civil jail of the Plaintiff/Respondent, Chibunda Rika Mwarika, for disobeying court orders of 21st December 2022, by which the status quo on a suit property was to be maintained and the Respondent restrained from erecting new structures. The application, founded on Section 5(1) of the Judicature Act, the Contempt of Court Act, and Order 51 Rule 1 of the Civil Procedure Rules, was unopposed; the court nonetheless determined it on its merits, being satisfied service had been effected. The court framed two issues: whether the application had merit, and who should bear costs. Restating the elements of civil contempt from Samuel M. N. Mweru v National Land Commission and related authorities, including the requirement of proof beyond reasonable doubt given the quasi-criminal nature of committal proceedings, the court scrutinised the applicants' evidence. The only proof of continued construction was two sets of photographs allegedly taken by the deponent. Applying Sections 78A and 106A to 106G of the Evidence Act, the court found the electronic evidence unreliable and unproven as to identification, no certificate of production having been furnished. Doubt was resolved in favour of the alleged contemnor. The application was dismissed for lack of merit; the status quo was preserved pending the hearing of the suit; the matter was fixed for pre-trial conference on 12th June 2025 and hearing on 24th September 2025; and there were no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion application dated 16th January, 2025 by the Respondents/Applicants has any merit whatsoever
  2. 2.Who bears the costs of the application?

Key legal issues

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01

Whether the Plaintifi/Respondent wilfully disobeyed the injunctive/status quo orders made on 21st December 2022 warranting committal

Holding

The application for committal failed; the applicants did not discharge the burden of proving contempt to the required standard

Reasoning

The court restated the elements of civil contempt: clear and unambiguous order, knowledge or notice, breach, and deliberate conduct, with the penal consequence attracting proof beyond reasonable doubt. The only evidence of continued construction was two sets of photographs taken by the deponent himself. Relying on Sections 78A and 106A-106G of the Evidence Act, the court found no certificate of production and no satisfactory explanation of reliability or identification of the electronic evidence. Doubt was resolved in favour of the alleged contemnor, contempt proceedings being quasi-criminal.

p. 5
02

Whether costs should be awarded to the unsuccessful-for-want-of-proof applicants whose application was unopposed

Holding

No costs were awarded notwithstanding the applicants' failure

Reasoning

Costs follow the event under the proviso to Section 27 of the Civil Procedure Act. The court, exercising discretion, found it unreasonable to award costs because the application was unopposed and thus the successful party was not entitled to costs.

p. 6

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, breach, and deliberate conduct; wilfulness and bad faith are inferred upon proof but rebuttable on a balance of probabilities
  • Contempt proceedings are quasi-criminal and any ambiguity is resolved in favour of the alleged contemnor
  • The standard of proof in committal proceedings is beyond reasonable doubt, including proof of service and wilful disobedience
  • Electronic and digital evidence must satisfy reliability and identification requirements including a certificate of production before weight is attached

Court orders

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  1. 1.The Notice of Motion application dated 16th January 2025 be and is hereby dismissed for lack of merit
  2. 2.In order to continue preserving the suit property pending the hearing of the suit the status quo to be maintained meaning the situation to remain as it was prior to filing of the suit
  3. 3.The matter to be mentioned on 12th June, 2025 for purposes of conducting Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010, and there be a hearing of the matter on 24th September, 2025
  4. 4.There be no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 5(1) of the Judicature Act, Cap 8; Sections 3, 4(1)(a), 5, 28 and 34 of the Contempt of Court Act No. 46 of 2016; Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A and 3A of the Civil Procedure Act, Cap 21

Relief refused

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Order of committal of the Plaintiff/Respondent to civil jail for contempt of court orders made on 21st December 2022

The applicants failed to prove the terms of the order, knowledge, breach and deliberateness to the required standard; the photographic evidence was unreliable as no certificate of production under Sections 78A and 106A-106G of the Evidence Act was furnished, so the contempt allegation was not proved beyond reasonable doubt

p. 5

Any other order deemed expedient in the circumstances

The substantive prayer for committal failed; costs were also refused as the application was unopposed

p. 6

Costs

There be no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion application dated 16th January 2025 be and is hereby dismissed for lack of merit.
p. 6Final orders - dismissal of committal application
That in order to continue preserving the suit property pending the hearing of the suit the status quo to be maintained meaning the situation to remain as it was prior to filing of the suit.
p. 6Final orders - status quo preserved
That there be no orders as to costs.
p. 7Final orders - costs
No man is above the law and no man is below it; nor do we ask any man's permission to obey it. Obedience to the law is demanded as a right; not as a favour.
p. 3Obedience to court orders
It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order.
p. 4Elements of civil contempt
With that it is this court's finding that it has not found any tangible evidence tendered in proof of allegations that despite the injunction orders being served upon the Respondent, he has continued with making development of structures on the suit property.
p. 5Failure of proof of contempt
The consequence of a finding of contempt is penal. The standard of proof is beyond reasonable doubt.
p. 6Standard of proof in contempt

Issues in the judgment

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minor

The date of the application is inconsistent: the notice of motion is dated 16th January 2025 but the affidavit of service refers to service of an application dated 16th January 2024

minor

The order allegedly disobeyed is variously dated 21st December 2022 and 30th November 2023 within the same affidavit narrative

minor

The heading refers to Respondents/Applicants but the concluding paragraph misdescribes the Plaintiff as 'Plaintifi/Applicant'

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, "Mwarika v Mlaji & 2 others (Environment & Land Case 47 of 2022) [2025] KEELC 1316 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC suit, Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1316/eng@2025-03-11

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