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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 3940 (KLR)

Nairobi City County v Waithaka (Environment & Land Case E116 of 2024) [2025] KEELC 3940 (KLR)

Environment and Land Court
19 May 2025
3,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendant/applicant moved the court by notice of motion dated 7th February, 2025 under Section 29 of the Environment and Land Court Act, Section 5 of the Judicature Act, Part 81.4 of the Civil Procedure (Amendment No. 2) Rules of England and Section 3A of the Civil Procedure Act, alleging that the plaintifl/respondent (a county government) and four officers, including the CECM Dr. Anastacia Nyalita, an MCA and county markets officials, entered and fenced the suit property LR. No. 209/12621, South B, on 29th and 30th January, 2025 and launched construction of a public market, in breach of consent orders of 20th May, 2024 restraining interference with his possession pending the suit. He sought a fine of Kshs. 20,000,000/- and committal to civil jail for two years. The respondents denied knowledge of the orders, personal service, and any involvement, attributing the project to the national Ministry of Lands. The court applied the Gatharia K. Mutikika standard, holding contempt to be quasi-criminal and requiring proof of wilful disobedience higher than balance of probabilities. It found the orders were made in the presence of counsel for both parties, that knowledge was accordingly imputed to the plaintifl/respondent, and that entry onto the property and the photographic evidence were not denied, such denials being raised only in submissions as an afterthought. The individual citees were not found in contempt for want of proved personal knowledge; the court observed that Cecilia Koigu, the Chief Oficer, Lands, who did not deny knowledge but was not cited, should have been the person cited. The court declared the plaintifl/respondent in contempt, directed Cecilia Koigu to appear on 1st July, 2025 to show cause why the respondent should not be punished, ordered arrest upon non-compliance, and awarded the applicant costs.

Key legal issues

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01

Whether the plaintifl/respondent and the cited officers are in contempt of the consent orders of 20th May, 2024

Holding

The plaintifl/respondent is in contempt, having knowledge of the orders made in the presence of its counsel and not denying entry onto the suit property; the individual citees were not found in contempt for want of proof of personal knowledge

Reasoning

The consent orders were made in the presence of counsel for all parties and remain in force. The respondent and citees did not deny being on the suit property on 29th and 30th January, 2025, nor the photographic evidence, such denials being raised only in submissions as an afterthought. Knowledge is imputed to the respondent through its counsel. However, the individual citees denied knowledge and service, and the standard of proof being quasi-criminal, committal could not rest on inference. The Chief Oficer, Lands, who did not deny knowledge, should have been cited.

02

Standard of proof in contempt proceedings

Holding

Applied the Gatharia K. Mutikika standard: proof higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Reasoning

Because liberty of the subject is at stake, contempt being criminal in character, the applicant must prove wilful and deliberate disobedience to a standard consistent with the gravity of the charge. The jurisdiction being practically arbitrary and unlimited, it must be exercised with greatest reluctance and only where no other mode of doing justice exists.

p. 6

Legal principles established

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  • Contempt proceedings are quasi-criminal and the standard of proof is higher than a balance of probabilities, though not the full criminal standard
  • Personal knowledge/service of the order is required before a person can be cited for contempt
  • Knowledge of an order made in the presence of a party's counsel is imputed to that party

Court orders

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  1. 1.The plaintifl/respondent is declared in contempt of the court orders issued on 20th May, 2024
  2. 2.Cecila Koigu, the Chief Oficer, Lands of the plaintifl/respondent to appear in court on 1st July, 2025 to show cause why the plaintifl/respondent should not be punished
  3. 3.Failure to comply with the appearance order warrants an order of arrest to issue
  4. 4.The defendant/applicant is awarded the costs of the application

Authorities

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Legislation

  • Environment and Land Court ActSection 29
  • Judicature ActSection 5
  • Civil Procedure (Amendment No. 2) Rules of England, 2012Part 81.4
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c)
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Evidence ActSections 106A and 106B

Cases cited (8)

  • Basil Criticos v Attorney General & 8 others & 4 others
    [2012] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Sheila Cassat Issenberg & another v Anthony Machatha Kinyanjui
    [2021] KEHC 5692(KLR)
  • Samuel M.N Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] KEHC 7193 (KLR)
  • Odindo & 13 others v County Government of Kisumu
    [2025] KEELRC 692 (KLR)
  • Silvya Merie v James Mwangi Gakuya, Registrar of Titles, Nairobi & Attorney General
    [2022] KEELC 948 (KLR)
  • Gatharia K. Mutikika versus Baharini Farm Limited
    [1985] KLR 227
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 5 of the Judicature Act; Order 40 Rule 3(1) of the Civil Procedure Rules; Section 63(c) of the Civil Procedure Act; Section 3A of the Civil Procedure 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, "Nairobi City County v Waithaka (Environment & Land Case E116 of 2024) [2025] KEELC 3940 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3940/eng@2025-05-19

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