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ELCAllowedNot stated in the judgment (Notice of Motion dated 6th February, 2025)· [2025] KEELC 5837 (KLR)

County Government of Kwale v Building Fire Consultants Co. Limited (Environment and Land Case 56 of 2021) [2025] KEELC 5837 (KLR)

Environment and Land Court
9 July 2025
5,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a county government knowingly disobeyed an injunction and its top officials must personally explain themselves or risk arrest.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (Naikuni J) on a Notice of Motion dated 6th February 2025 by the Defendant/Applicant, Building Fire Consultants Co. Limited, seeking contempt summons, committal and arrest warrants against the Plaintiff/Respondent County Government of Kwale's County Attorney and County Executive Committee Member for Lands for disobeying temporary injunctive orders issued on 3rd February 2025 restraining interference with Plots Kwale/Diani Complex/721, 784, 785 and 786. The Court framed four issues: whether the orders were clear and unambiguous; whether the alleged contemnors had knowledge and were served; whether the CEC was in contempt; and costs. Relying on Samuel M. N. Mweru v National Land Commission, the Court applied the four-element test for civil contempt, finding the injunction clear, subsisting, and never discharged or varied. On service, the Court endorsed the modern position, per Kenya Tea Growers Association v Atwoli and Basil Criticos v Attorney General, that knowledge of an order supersedes personal service, and found the Plaintiff/Respondent fully aware of the orders. Applying Mutitika v Baharini Farm on the heightened standard of proof, the Court found deliberate breach through continued trespass and construction of a fence and gate. The application was allowed in its entirety: summons were issued requiring the County Attorney and CEC Lands to appear on 17th July 2025 to explain and purge the contempt, with a conditional arrest warrant; costs were awarded to the Defendant/Applicant, borne by the Plaintiff/Respondent personally.

Key legal issues

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01

Whether the orders of 3rd February 2025 were clear and unambiguous and capable of being obeyed

Holding

The orders restraining the Plaintiff/Respondent from interfering with the suit properties were clear and unambiguous, and no complaint of ambiguity was raised.

Reasoning

The Court found that the injunctive orders of 3rd February 2025 were plainly worded and had not been discharged, varied or set aside. The Plaintiff/Respondent never claimed the orders were ambiguous or confusing. The first element of the civil contempt test from Samuel M. N. Mweru was therefore satisfied: clear orders binding on the party, within its knowledge, and breached.

p. 6
02

Whether the Plaintiff/Respondent had knowledge of the orders and whether personal service was necessary

Holding

Service was properly effected and knowledge proved; personal service is not mandatory where knowledge of the order is established.

Reasoning

Relying on Kenya Tea Growers Association v Francis Atwoli, Basil Criticos v Attorney General and Shimmers Plaza v National Bank of Kenya, the Court held that knowledge of an order supersedes personal service. The affidavit of service (JN-002) and accompanying letter established that the Plaintiff/Respondent had full knowledge of the orders, so its agents could not claim unawareness.

p. 7
03

Whether the County Attorney and/or CEC for Lands were in contempt

Holding

The Plaintiff/Respondent's agent was in contempt of the court orders, warranting the summons and consequential orders sought.

Reasoning

Applying the Mweru and Mutitika v Baharini Farm thresholds, the Court was satisfied the Plaintiff/Respondent knowingly breached the subsisting injunction by continuing construction of a fence and gate on the suit properties. The breach was deliberate; willfulness and bad faith were inferred and unrebutted, satisfying the higher-than-civil standard of proof.

p. 9
04

Who bears the costs of the application

Holding

Costs of the application were awarded to the Defendant/Applicant, to be borne by the Plaintiff/Respondent personally.

Reasoning

Citing Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, the Court exercised its discretion in favour of the successful Defendant/Applicant, there being no compelling reason to depart from the general rule.

p. 10

Legal principles established

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  • Knowledge of a court order supersedes personal service for purposes of contempt proceedings.
  • Every person against whom a court order is made must obey it unless and until it is discharged, even if believed irregular or void.
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, though not beyond reasonable doubt.

Court orders

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  1. 1.The Notice of Motion application dated 6th February, 2025 be and is hereby found to have merit and is allowed in its entirety.
  2. 2.Summons issued to the Plaintiff/Respondent's County Attorney and the County Executive Committee Member for Lands (CEC) to personally appear before the Court on 17th July, 2025 to explain their disobedience of the orders issued on 3rd February 2025 and purge the contempt.
  3. 3.In the event of failure to comply with summons, an arrest warrant to issue against the Plaintiff/Respondent's Current County Attorney and/or the County Executive Committee Member for Lands (CEC) in contempt of court.
  4. 4.Costs of the Application awarded to the Defendant/Applicant to be borne by the Plaintiff/Respondent personally.
Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010; Section 5(1) of the Judicature Act, Cap. 8; Section 29 of the Environment and Land Court Act, No. 19 of 2011

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, "County Government of Kwale v Building Fire Consultants Co. Limited (Environment and Land Case 56 of 2021) [2025] KEELC 5837 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 6th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5837/eng@2025-07-09

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