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ELCDismissedNot stated in the excerpt (Notice of Motion dated 04.05.2026 arising from an appeal)· [2026] KEELC 3255 (KLR)

Gilbert & 3 others v M’Mungania & 2 others (Environment and Land Appeal E039 of 2024) [2026] KEELC 3255 (KLR)

Environment and Land Court
28 May 2026
3,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The applicants, who had succeeded in an appeal decided on 24.03.2026 in which LR Kiirua/Ruiri/2083 was held on trust for them and its sale to the 2nd and 3rd respondents declared unlawful, moved the court by Notice of Motion dated 04.05.2026 seeking contempt citations against the 2nd and 3rd respondents, committal to civil jail, preservatory orders restraining threats, intimidation and harassment, and orders that the OCS Ruiri Police Station ensure compliance. They complained that the respondents had lodged a complaint with the Nchuri Ncheke Elders, summoned the applicants to appear before them, threatened to administer the illegal 'kithiri' oath under Ameru customs, and demanded a refund of the purchase price contrary to the judgment. Counsel for the respondents opposed on points of law, arguing the complaints were criminal in nature, contempt was not established to the requisite standard, and the application was an abuse of process. The court framed three issues: jurisdiction, abuse of process, and contempt. It held that its jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act is confined to land ownership and title and excludes criminal matters, which belong to the police and the DPP. The grievances raised were outside the pleadings and evidence in the appeal and their prosecution before the court amounted to an abuse of process. Contempt must relate to issues actually before the court and be proved to the intermediate, almost criminal, standard; the applicants discharged no such burden. The application was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction over allegations of criminal conduct (intimidation, harassment, threats)

Holding

The ELC's jurisdiction is limited to ownership of and title to land; criminal allegations fall to the police and the DPP.

Reasoning

The court held its jurisdiction derives from Article 162(2)(b) and Section 13 of the Environment and Land Court Act, confined to land ownership and title. Allegations of threats, intimidation and harassment are cognizable offences under the Penal Code, which only the Inspector-General of Police may investigate and the DPP may act upon. Citing Samuel Kamau Macharia, a court cannot expand jurisdiction by judicial craft.

p. 4
02

Abuse of the due process of the court

Holding

Raising issues outside the pleadings and evidence canvassed in the lower court amounts to abuse of process.

Reasoning

The applicants sought to introduce the Nchuri Ncheke complaint and summons, the 'kithiri' oath, refund demands and alleged harassment - matters not part of the appeal. Invoking Order 2 Rule 6 (doctrine of departure) and Satya Bhama Gandhi, the court held parties must channel grievances to the appropriate forum and that persisting with a cause outside the court's mandate is an abuse of process.

p. 5
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Threshold for contempt of court

Holding

Contempt must relate to issues actually before the court and be proved to the intermediate standard; the applicants discharged no such burden.

Reasoning

Relying on Mutitika v Baharini Farm Ltd, the court noted contempt proceedings are a last resort, the standard of proof is nearly criminal, and recourse to contempt should not aid a civil remedy where another mode of doing justice exists. The grievances relied on were never the subject of the judgment of 24.03.2026 and were therefore alien to the dispute.

p. 7

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and it cannot arrogate to itself jurisdiction beyond that conferred by law
  • Where a court is not expressly granted jurisdiction to perform an act, it must down its tools
  • Contempt must relate to the issues that were before the court and allegations must be proven to the intermediate standard
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.The Application be and is hereby Dismissed
  2. 2.Costs of the Application be and are hereby awarded to the Respondents
  3. 3.The costs shall be agreed upon and in default be taxed in the conventional manner
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 2010 read together with Section 13 of the Environment and Land Court Act, 2011; application brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Section 5 of the Judicature Act and Article 159(2)(d)

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, "Gilbert & 3 others v M’Mungania & 2 others (Environment and Land Appeal E039 of 2024) [2026] KEELC 3255 (KLR)", Case Analysis (2026). Not stated in the excerpt (Notice of Motion dated 04.05.2026 arising from an appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3255/eng@2026-05-28

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