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ELCStruck OutNotice of Motion dated 11th April 2025 (in ELC JR E002 of 2024)· [2026] KEELC 309 (KLR)

Mwembelegeza Community Residents v Faruk (Secretary County Government of Mombasa) & 4 others (Environment and Land Miscellaneous Application E027 of 2025) [2026] KEELC 309 (KLR)

Environment and Land Court
29 January 2026
JOJ.O. Olola
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court struck out a contempt application because it relied on a law declared unconstitutional, without deciding whether anyone actually disobeyed the demolition order.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th April 2025, the Mwembelegeza Community Residents sought a declaration that Jeizan Faruk, Mohamed Hussein Mohamed, Mariam Mapenzi, Said Guleid and Mamo Boru Mamo were in contempt of an order of mandamus issued on 29th January 2025 in ELC JR E002 of 2024, compelling demolition of structures illegally built on public utility land No. 1476 Mwembelegeza Scheme pursuant to the decree in ELC Petition No. 35 of 2020. They sought committal to prison for up to six months or, alternatively, a fine. The motion was expressed to be brought under Sections 4(1) and 5 of the Contempt of Court Act No. 46 of 2016 and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act. The 1st to 4th Respondents raised a preliminary objection, arguing inter alia that the Contempt of Court Act had been declared unconstitutional and the application was premature and bad in law. NEMA, the 5th Respondent, averred in a replying affidavit that the mandamus did not directly require it to undertake demolitions and that the orders carried no timelines. The court found, and the Applicants conceded, that the Contempt of Court Act was declared unconstitutional in the Kenya Human Rights Commission case in November 2018. Relying on the Supreme Court's decision in Mungai v Housing Finance Company (K) Limited, endorsing the Steyn principle that a court must be moved under correct and existing legal provisions, the court held the motion fatally defective and struck it out with no order as to costs. The court made no finding on the merits of the alleged contempt.

Key legal issues

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Whether a contempt application brought under the declared-unconstitutional Contempt of Court Act could be sustained

Holding

The motion was fatally defective and was struck out

Reasoning

The court accepted that the Contempt of Court Act No. 46 of 2016 was declared unconstitutional by the High Court in the Kenya Human Rights Commission case in November 2018, and the Applicants conceded this. The Applicants argued they had alternatively cited Section 5(1) of the Judicature Act and Sections 3A and 63(c) of the Civil Procedure Act, but the court found the Judicature Act had not actually been invoked in the motion, and the Civil Procedure Act provisions could not confer contempt jurisdiction. Following the Supreme Court's decision in Mungai v Housing Finance Company (K) Limited, which endorsed the Steyn principle that a court must be moved under a specific, existing provision of law, the motion was struck out.

p. 4

Legal principles established

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  • A court must be moved under the correct, existing provisions of the law; an application founded on a repealed or unconstitutional statute is fatally defective

Court orders

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  1. 1.The Notice of Motion dated 11th April 2025 is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10 and 232
  • Contempt of Court ActSections 4(1) and 5
  • Civil Procedure ActSections 1A, 1B, 3A and 63 (and 63(c))
  • Judicature ActSection 5(1)
  • Public Officer Ethics ActSections 7 and 12

Cases cited (3)

  • Kenya Human Rights Commission v the Attorney General & Another
    (2018) eKLR
  • Mungai v Housing Finance Company (K) Limited & 5 Others
    (Civil Appeal (Application) No. 9 of 2015) [2017] KESC 47 (KLR)
  • Hermanus Phillipus Steyn v. Giovanni Gnnechi-Ruscone
    Supreme Court, Application No. 4 of 2012
Jurisdiction invoked
Sections 4(1) and 5 of the Contempt of Court Act No. 46 of 2016 and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act (invoked by Applicants)

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, "Mwembelegeza Community Residents v Faruk (Secretary County Government of Mombasa) & 4 others (Environment and Land Miscellaneous Application E027 of 2025) [2026] KEELC 309 (KLR)", Case Analysis (2026). Notice of Motion dated 11th April 2025 (in ELC JR E002 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/309/eng@2026-01-29

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