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ELCPartially AllowedNot stated on the face of the judgment (arises from Milimani ELC Case No. E173 of 2023)· [2025] KEELC 4852 (KLR)

Waithaka & another v Waithaka & 3 others (Environment and Land Miscellaneous Case E275 of 2024) [2025] KEELC 4852 (KLR)

Environment and Land Court
13 June 2025
3,034 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court found a landowner in contempt for selling land under a court order, but refused wider orders against non-parties.

What this practically means

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Executive summary

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The Applicants, who had obtained orders on 31st October 2023 in Milimani ELC Case No. E173 of 2023 (preservation of title over L.R 2327/53, an interim injunction against disposal, and maintenance of status quo), moved the court by Notice of Motion dated 2nd November 2024 seeking contempt proceedings against the Respondents, maintenance of the status quo and injunction, withdrawal of the 2nd and 3rd Respondents' private security from the suit property, and police enforcement. The court set out the elements of civil contempt - a clear order, knowledge, and deliberate breach - to be proved to a quasi-criminal standard. It found the order clear and that the 1st Respondent knew of it through her Advocate. The Applicants established that the 1st and 4th Respondents transferred half an acre from the suit property to the 2nd and 3rd Respondents by transfer executed on 18th June 2024 and registered on 10th October 2024, while the order was in force. The court held the 1st Respondent in contempt. The Section 34 limitation defence under the Contempt of Court Act failed because the Act had been declared unconstitutional. However, the substantive prayers failed: the 2nd and 3rd Respondents were not parties to ELC Case No. E173 of 2023 and were not bound by its orders, and injunctive relief could not issue from a miscellaneous application without an existing suit. The application partially succeeded with a finding of contempt against the 1st Respondent only, and each party was ordered to bear its own costs.

Key legal issues

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01

Clarity of the order of 31st October 2023

Holding

The order was clear and unambiguous, restraining the 1st Respondent from disposing of the suit property and preserving the title.

Reasoning

The court reproduced the three orders issued on 31st October 2023: preservation of title over L.R 2327/53, an interim injunction against disposal, and maintenance of status quo. It found the order specified the parcel numbers and injunctive relief with clarity, satisfying the first element of civil contempt.

p. 5
02

Service and knowledge of the order

Holding

The 1st Respondent had knowledge of the order through her Advocate at the delivery of the ruling; the 2nd and 3rd Respondents were not parties to the suit and the order was directed only to the 1st Respondent.

Reasoning

The ruling was delivered in the presence of the 1st Respondent's Advocate, so knowledge was imputed. The WhatsApp screenshot showed service on the 2nd Respondent only on 28th October 2024, and the 2nd and 3rd Respondents were strangers to ELC Case No. E173 of 2023, so the order did not bind them.

p. 6
03

Wilful and deliberate breach

Holding

The 1st and 4th Respondents transferred half an acre from the suit property while the order was still in existence; the 1st Respondent is held in contempt.

Reasoning

Applying the standard in Gatharia K. Mutitika, the court required proof beyond balance of probabilities of wilful disobedience. The sale agreement dated 22nd September 2022 and the transfer executed on 18th June 2024 and registered on 10th October 2024 established breach of the injunctive order during its subsistence.

p. 6
04

Limitation under Section 34 of the Contempt of Court Act

Holding

The application is not statute barred because the Contempt of Court Act was declared unconstitutional and is no longer operative.

Reasoning

Relying on Kenya Human Rights Commission v Attorney General, the court held that the Act's invalidity removed any limitation period founded on it, defeating the 2nd and 3rd Respondents' time-bar objection.

p. 6
05

Entitlement to injunctive and status quo orders

Holding

Injunctive orders cannot issue in a miscellaneous application without an existing suit, and the status quo orders did not bind the 2nd and 3rd Respondents who were not parties to ELC Case No. E173 of 2023.

Reasoning

The court held that a suit must be instituted by Plaint, Petition or Originating Summons; a miscellaneous application must be hinged on an existing suit. Since the Applicants filed none, the substantive prayers for injunction and maintenance of status quo failed.

p. 7

Legal principles established

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  • A miscellaneous application is not an originating process and injunctive orders cannot issue where no suit exists
  • The Contempt of Court Act ceased to be operative upon being declared unconstitutional, so a limitation defence founded on its Section 34 fails
  • Contempt is quasi-criminal and requires proof of wilful and deliberate disobedience to a standard higher than balance of probabilities

Court orders

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  1. 1.The 1st Respondent is found to be in contempt of the court order issued on 31st October 2023
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Contempt of Court ActSection 34
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Judicature ActSection 5

Cases cited (7)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another
    [2005] eKLR
  • Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No 364 of 2005
  • Samuel M.N. Mweru & Others v National Land Commission & 2 Others
    (2020) eKLR
  • Gatharia K. Mutitkika v Baharini Farm Ltd
    (1985) KLR
  • Peter K. Yego & Others v Pauline Wekesa Kode
    ACC NO. 194 OF 2014
  • Kenya Human Rights Commission vs Attorney General & another
Jurisdiction invoked
Section 5 of the Judicature Act (power to punish for contempt of court)

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, "Waithaka & another v Waithaka & 3 others (Environment and Land Miscellaneous Case E275 of 2024) [2025] KEELC 4852 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (arises from Milimani ELC Case No. E173 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4852/eng@2025-06-13

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