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ELCDismissedNotice of Motion dated 24th October 2024 (ELC Mombasa)· [2025] KEELC 7573 (KLR)

Maloba v Laundra & another; PS Ministry of Foreign Affairs (Alleged Contemnor) (Enviromental and Land Originating Summons E001 of 2022) [2025] KEELC 7573 (KLR)

Environment and Land Court
5 November 2025
SKS. M. Kibunja
2,512 words in judgment
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The bottom line

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Kenya's Environment and Land Court declined to jail the Foreign Affairs Principal Secretary, ruling that contempt requires proof of wilful, bad-faith disobedience of court orders.

What this practically means

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Executive summary

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The applicant, an advocate prosecuting an adverse possession claim over Plot L.R. 1529, Nyali (Mombasa), moved the court by notice of motion dated 24th October 2024 seeking the committal of the Principal Secretary, Ministry of Foreign Affairs, to civil jail for six months for allegedly disobeying court orders issued on 4th January 2024 and 29th April 2024. The orders related to service of summons on defendants believed to be in Italy, transmission of which is channelled through the Ministry. The Principal Secretary, Dr. A. Korir Singoei, replied through an affidavit confirming receipt of correspondence but explaining that the Ministry responded to the applicant's letters, advising on the requirements for service abroad under Order 5 Rule 29 of the Civil Procedure Rules, including obtaining leave and translating pleadings into the prescribed Form 7 Appendix A. He contended the application suffered from material non-disclosure and was an attempt to circumvent Order 5 Rule 29. The court framed two issues: whether the alleged contemnor was in contempt, and costs. Relying on superior court authority, it held that contempt must be proved as wilful and mala fide, that actual disobedience must be proved, and that the applicant bore a strict burden. The Ministry's conduct - replying to letters and guiding the applicant on service requirements - was not wilful disobedience, and any delay was attributable to the applicant's failure to comply with Order 5 Rule 29. The applicant filed no rebuttal affidavit or submissions. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the alleged contemnor wilfully and deliberately disobeyed the court orders of 4th January 2024 and 29th April 2024

Holding

No contempt established; the applicant failed to discharge the strict burden of proof

Reasoning

Service on the Ministry was not disputed, but the Ministry responded to correspondence, advised on requirements for service abroad under Order 5 Rule 29 Civil Procedure Rules, and its delay stemmed from the applicant's own non-compliance with those requirements. The applicant filed no further affidavit in rebuttal. The steps taken were those of an official acting in good faith, not a wilful contemnor, so the committal prayer failed.

p. 5
02

The applicable legal framework for contempt proceedings

Holding

Following the invalidation of the Contempt of Court Act 2016, section 5(1) of the Judicature Act and Part 81 of the English Civil Procedure Rules apply

Reasoning

The court adopted the reasoning in Republic v Kajiado County ex parte Kilimanjaro Safari Club that since the Contempt of Court Act 2016 was declared invalid, it did not effectively repeal section 5 of the Judicature Act, which continues to apply together with the common law under section 3, importing the English law on committal for contempt including personal service requirements.

p. 3

Legal principles established

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  • A contempt application must be personally served upon the alleged contemnor
  • Disobedience constituting contempt must be both wilful and mala fide; a bona fide refusal, even if unreasonable, is not contempt
  • Actual disobedience must be proved before a party is cited for contempt

Court orders

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  1. 1.That the contempt application dated 24th October 2024 is without merit.
  2. 2.That the said application is hereby dismissed.
  3. 3.Each party to bear their own costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 29
  • Civil Procedure Rules (English)Rule 81.4; Rule 81.8; Part 81
  • Civil Procedure Actsection 3A; section 27
  • Judicature Actsection 3; section 5(1)
  • Contempt of Court Actsection 38; section 39(2)(g)
  • Government Proceedings Actsection 17
  • Constitution of KenyaArticles 10 and 118(b)

Cases cited (7)

  • Republic versus Kajiado County & 2 Others ex parte Kilimanjaro Safari Club Limited
    J.R. No. 390 of 2014
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] e KLR
  • Republic vs. Returning Officer of Kamkunji Constituency & The Electoral Commission of Kenya
    HCMCA No. 13 of 2008
  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Econet Wireless Kenya Ltd versus Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Samuel M. N. Mweru & Others versus National Land Commission & 2 Others
    [2020] eKLR
  • Peter K. Iyego & 2 Others versus Pauline Wekesa Kode
    Acc No. 194 of 2014
Jurisdiction invoked
Inherent jurisdiction under section 3A of the Civil Procedure Act; contempt enforcement in an adverse possession suit

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, "Maloba v Laundra & another; PS Ministry of Foreign Affairs (Alleged Contemnor) (Enviromental and Land Originating Summons E001 of 2022) [2025] KEELC 7573 (KLR)", Case Analysis (2025). Notice of Motion dated 24th October 2024 (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7573/eng@2025-11-05

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