Ogle alias Rahma Hussein v Sheikh & 6 others (Environment and Land Appeal E051 of 2023) [2025] KEELC 3476 (KLR)

The court reviewed the statutory framework: s.29 of the ELC Act criminalises disobedience of court orders; s.63(c) of the Civil Procedure Act permits committal for breach of temporary injunction; Order 40 rule 3 prescribes detention up to six months; and s.10 of the Magistrates Act confers contempt powers on magistrates. On this basis, magistrates' courts could entertain the contempt applications notwithstanding the Contempt of Court Act having been declared unconstitutional.

The affidavit of service sworn by Noel M. N. Munyithya was unchallenged, establishing service. The court further adopted the Shimmers Plaza principle that proof of knowledge dispenses with personal service, and noted the ruling of 12/5/23 was delivered in the presence of the Appellant's counsel, whose duty includes updating the client on court proceedings.

The Appellant was already in possession when suit was filed in December 2022. The orders of 10/1/23 effectively evicted her at the interlocutory stage, when a court should avoid a mini-trial and preserve the status quo. Further, the plaint sought only general and special damages, with no prayer for injunction, so the interlocutory injunction could not be anchored in the pleadings.

Relying on Muruatetu, the court held that mitigation is an important element of a fair trial under Article 50(2), and the right to fair trial is non-derogable under Article 25(c). Contempt proceedings being quasi-criminal, sentencing without affording the Appellant an opportunity to mitigate, consider a fine, or purge the contempt was a fundamental procedural error warranting setting aside the orders.