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ELCDismissedNotice of Motion dated 15/12/2023 (suit re: Land Parcel Ruiru Kiu Block 2 (Githunguri) 4016)· [2026] KEELC 1892 (KLR)

Githunguri Constituency Ranching Company Limited v Mwangi & 2 others (Being Sued as Village Elders of Mitikenda Area) & 2 others (Environment and Land Case E061 of 2023) [2026] KEELC 1892 (KLR)

Environment and Land Court
26 February 2025
MOMogeni
2,103 words in judgment
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The bottom line

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A Kenyan court dismissed a contempt claim because the winner never personally served the court order on the people he accused of disobeying it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika (Mogeni J) determined a Notice of Motion dated 15 December 2023 in which the Plaintiff/Applicant sought leave to institute contempt proceedings against the 1st and 2nd Defendants/Respondents and their punishment by imprisonment for disobeying ex parte orders issued on 8/11/2023 and issued on 9/11/2023, which restrained continued construction on land parcel Ruiru Kiu Block 2 (Githunguri) 4016. The Applicant, through the affidavit of John Maina Mburu, alleged that construction progressed to completion despite the order, and that the Respondents and the OCS Gatongora were aware of it. The 2nd Respondent, Peter Kamau Mwangi, denied contempt, asserting he and village elders were not party to the construction and blaming the police for failing to enforce the order. The court reviewed the law on contempt, including the standard of proof from Gatharia K. Mutikika vs Baharini Farm Ltd and the elements of contempt from Koilel, and noted that the Respondents' counsel had appeared in court without seeking to set aside the order. However, the court found that the order was ex parte and that although service was effected on the Respondents' advocates and the OCS, there was no evidence of personal service on the alleged contemnors themselves or proof of their knowledge of the order. Applying the requirement of personal service from Anne Wanjiru Kabiru vs Bedan M. Chege, the court held the Applicant had failed to prove contempt and dismissed the application, with costs in the cause.

Key legal issues

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01

Whether contempt was proved against the 1st and 2nd Respondents

Holding

No; contempt was not proved because personal service of the ex parte order on the alleged contemnors was not demonstrated

Reasoning

The court accepted the ex parte prohibitory order was issued and that the Respondents' advocates and the OCS were served. However, contempt is quasi-criminal and requires proof of the terms of the order, knowledge by the Respondent, and breach. Since the order was ex parte and the Applicant did not prove it was extracted and personally served on Peter Kamau Mburu, Haron Mburu Thuita, Simon Mburu Gitau and Dan Gitau, or that they had knowledge of it, the Applicant failed to discharge the burden. Their advocates' attendance could not substitute for personal service on the alleged contemnors.

p. 5

Legal principles established

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  • For an application for committal for contempt to succeed, there must be personal service of the order and a penal notice on the alleged contemnor, or proof of knowledge of the order

Court orders

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  1. 1.The Notice of Motion dated 15/12/2023 for contempt of court was dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (8)

  • Gatharia K. Mutikika vs Baharini Farm Ltd
    [1985] KLR 227
  • Koilel & 2 Others vs Koilel & Another
    (Civil Appeal E002 of 2021) [2022] KEHC 10288 (KLR) (30 June 2022)
  • Kristen Carla Burchell vs Barry Grant Burchell
    Eastern Cape Division Case No. 364 of 2005
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Wildlife Lodges Ltd Vs County Council of Narok & Another
    (2005) 2 EA
  • Kenya Tea Growers Association Vs Francis Atwoli & 5 Others
    (2012) eKLR
  • Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & Another
    (2014) eKLR
  • Anne Wanjiru Kabiru vs. Bedan M. Chege (t/a Bedans Auctioneering Services)
    Misc. Appl. No. 114 of 2007 (2008) eKLR
Jurisdiction invoked
Section 5 of the Judicature Act; Sections 1A, 1B of the Civil Procedure Act; Order 40 Rules 1, 2, 3 and Order 51 Rule 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, "Githunguri Constituency Ranching Company Limited v Mwangi & 2 others (Being Sued as Village Elders of Mitikenda Area) & 2 others (Environment and Land Case E061 of 2023) [2026] KEELC 1892 (KLR)", Case Analysis (2025). Notice of Motion dated 15/12/2023 (suit re: Land Parcel Ruiru Kiu Block 2 (Githunguri) 4016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1892/eng@2026-02-26

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