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ELCDismissedNot stated in judgment (application dated 27/6/2025)· [2025] KEELC 6908 (KLR)

Tapoyo v Tapoyo & another (Environment and Land Case 36 (E032) of 2021) [2025] KEELC 6908 (KLR)

Environment and Land Court
13 October 2025
921 words in judgment
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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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This is a ruling of the Environment and Land Court at Kitale (C.K. Nzili, J) delivered on 13 October 2025 on a notice of application dated 27 June 2025 in which the plaintiff, James Musa Tapoyo, sought to have the 2nd defendant punished for contempt of court. The applicant alleged that despite being found guilty of contempt, convicted and sentenced twice, the 2nd defendant continued to disobey court orders of 6 July 2021 and 25 January 2022 and rulings dated 3 March 2022, 16 November 2022 and 5 July 2024. It was deposed that since February 2025 the 2nd defendant had trespassed onto the suit land, driven a tractor onto it, ploughed it, planted maize, cut down trees, and that his family members patrolled the land daily while armed with pangas, causing the applicant and his family psychological torture and mental anguish; incidents were reported at Kapenguria Police Station as per OB reports and photographs were annexed. The 2nd defendant was served and filed no replying affidavit. The court restated the governing framework (Section 5 of the Judicature Act, Order 40 Rule 3(1) of the Civil Procedure Rules and Section 29 of the Environment and Land Court Act) and the ingredients of contempt, including proof of a clear, unambiguous and binding order, knowledge of it, personal service with a penal notice, and a wilful breach. The court found the OB reports and photographs uncertified and non-compliant with electronic evidence rules, noted that the court orders and rulings were not attached and that service of the orders was not proved, and declined to speculate or fill gaps for the applicant. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether contempt was proved against the 2nd defendant

Holding

Not proved; the applicant failed to discharge the burden of proving service and breach of a validly served order

Reasoning

The court found the OB reports and photographs inadmissible or insufficient, being uncertified and non-compliant with electronic evidence rules. The court orders and rulings were not attached to the application, and there was no evidence the 2nd defendant was served with the orders or that they were made in his presence. The court refused to guess, speculate or fill gaps for the applicant.

p. 2
02

The procedural and substantive law governing contempt proceedings before the ELC

Holding

Section 5 of the Judicature Act, Order 40 Rule 3(1) of the Civil Procedure Rules and Section 29 of the Environment and Land Court Act govern

Reasoning

The court identified the governing framework and relied on Shimmers Plaza for the ingredients of contempt, Samuel M.N. Maweu for proof of a clear and unambiguous binding order, Basil Criticos for penal notice and personal service, and Githinga for the requirement of fair hearing and natural justice in contempt proceedings.

p. 2

Legal principles established

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  • Whoever seeks to cite a person for contempt must demonstrate and prove the allegation of contempt
  • An order must be endorsed with a penal notice and personally served before contempt can be proved; acknowledgment of receipt must be proved
  • Ingredients of contempt include knowledge of the court order, an act in breach, and wilfulness or deliberateness
  • The applicant must prove the order was clear, unambiguous and binding on the citee

Court orders

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  1. 1.The application dated 27/6/2025 seeking to punish the 2nd defendant for contempt of court is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Environment and Land Court ActSection 29

Cases cited (10)

  • Samuel M.N. Maweu & Others vs National Land Commission
    [2020] eKLR
  • M'Mukira & Others -vs- Magiri & Another
    [2024] KEELC 5736 [KLR]
  • Mwenda -vs- Mukiama
    [2025] KEELC 3276 [KLR] (28th March 2025) (Ruling)
  • Shimmers Plaza -vs- National Bank of Kenya Ltd
    [2015] eKLR
  • Mutitika -vs- Baharini Farm Limited
    (1985) KLR 229, 234
  • Econet Wireless (K) Ltd -vs- Minister for Information & Communication (K) & Another
    [2005] eKLR
  • Republic -vs- Mohamed & Another
    [2019] KESC 47 [KLR] (15th March 2019)
  • Githinga & Others -vs- Kiiru Tea Factory Co. Ltd
    [2023] KESC 411 [KLR] (16th June 2023) (Judgment)
  • Basil Criticos -vs- Attorney General & 8 others & 4 others
    [2012] eKLR
  • Justus Kariuki Mate & another -vs- Martin Nyaga Wambora & another
    [2014] eKLR
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

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, "Tapoyo v Tapoyo & another (Environment and Land Case 36 (E032) of 2021) [2025] KEELC 6908 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 27/6/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6908/eng@2025-10-13

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