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ELCDismissedNotice of motion dated 21 November 2025 (suit over land parcels Ndithini Mananja Block 1/4068-4073, Machakos ELC)

Kyule v Katu & 5 others (Environment and Land Case Civil Suit E106 of 2024) [2026] KEELC 3487 (KLR)

Environment and Land Court
9 June 2026
2,847 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

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 Machakos (Koross J) delivered on 9 June 2026 on a notice of motion dated 21 November 2025 by the plaintiff seeking contempt findings and committal of the 1st defendant for allegedly disobeying status quo orders issued on 19 December 2024 and injunctive orders of 4 November 2025 over land parcels Ndithini Mananja Block 1/4068-4073. The plaintiff alleged the 1st defendant entered the land and grazed livestock, damaging crops, evidenced by photographs, letters from the chief, assistant chief and agricultural officer, and a neighbour's affidavit. The 1st defendant denied the contempt, disowned the animals, and challenged the photographs for non-compliance with Sections 106A and 106B of the Evidence Act. The court framed a single issue: whether the 1st defendant was in contempt. Relying on Christine Wangari Gachege, it adopted English CPR Rule 81.4 procedure; applying Republic v Ahmad Abolfathi Mohammed and Mutitika v Baharini Farm, it applied a standard of proof approaching beyond reasonable doubt. The court found service of the 19 December 2024 orders unproved, so no contempt could lie for them. On the 4 November 2025 orders, the administrative letters predated the ruling and failed to identify the suit land, and the photographs were inadmissible for want of a proper electronic evidence certificate, following County Assembly of Kisumu. The court dismissed the motion with costs in the cause and directed a mention for pretrial directions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st defendant is in contempt of the court orders issued on 19 December 2024 and 4 November 2025

Key legal issues

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01

Whether the 1st defendant was in contempt of the orders of 19 December 2024 and 4 November 2025

Holding

No contempt established; the application was dismissed

Reasoning

The court applied the near-criminal standard of proof from Mutitika v Baharini Farm. The 19 December 2024 orders failed for want of proof of personal service. As to the 4 November 2025 orders, the administrative letters predated the ruling and did not identify the suit land, and the photographs were inadmissible for want of a certificate under Sections 106A-106B of the Evidence Act. Evidence therefore fell below the required threshold.

p. 5
02

Admissibility of photographic (electronic) evidence in contempt proceedings

Holding

Photographs inadmissible for non-compliance with Sections 106A and 106B of the Evidence Act

Reasoning

Following County Assembly of Kisumu, the provisions are mandatory, aimed at ensuring authenticity and integrity of electronic records, though the certificate format is flexible and affidavit averments may meet the threshold. Here the further affidavit omitted the date the photographs were taken and gave deficient particulars of handling, so no proper certificate existed and the photographs were expunged of probative value.

p. 7
03

Service as a precondition to contempt liability

Holding

Contempt cannot be founded on orders not proved served; service of the 4 November 2025 orders was established as counsel was present, but service of the 19 December 2024 orders was not proved

Reasoning

The court treated service as the first step in contempt proceedings. Where the ruling was rendered in the presence of the defendant's counsel, service was satisfied; but for the earlier orders there was no proof of service, and a party cannot be punished for disobeying orders of which they were not privy.

p. 4

Legal principles established

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  • Contempt proceedings are quasi-criminal, must be exercised with utmost care and only as a last resort, and conduct must be deliberate/willful
  • The standard of proof in contempt is higher than balance of probabilities, approaching but not beyond reasonable doubt
  • A contemnor cannot be held liable for orders not proved to have been served on them
  • Without a proper certificate of electronic evidence under Sections 106A and 106B of the Evidence Act, photographs lack probative value and are inadmissible, though the certificate format is not rigid and affidavit averments may suffice
  • Ingredients of contempt: an existing order capable of being disobeyed, awareness of the order, and breach of the order

Court orders

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  1. 1.The notice of motion dated 21 November 2025 is dismissed with costs in the cause
  2. 2.A mention date shall be given for pretrial directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Article 40 of the Constitution; Section 5 of the Judicature Act (Cap 8)

Relief refused

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Notice to show cause and committal of the 1st defendant to jail for six months or penalisation for contempt

Plaintiff failed to prove service of the 19 December 2024 orders and failed to meet the contempt standard of proof; letters predated the 4 November 2025 ruling and photographs were inadmissible for want of an electronic evidence certificate

p. 4

Costs of the application borne by the 1st defendant

Application dismissed with costs in the cause against the plaintiff

p. 7

Costs

Application dismissed with costs in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is dismissed with costs in the cause. A mention date shall be given for pretrial directions. Orders accordingly.
p. 7Final orders - dismissal of contempt motion
the standard of proof in contempt proceedings is higher than the balance of probabilities, approaching but not quite beyond a reasonable doubt
p. 4Standard of proof in contempt
in the absence of proof of service upon the 1st defendant, she cannot be held in contempt of orders to which she was not privy
p. 4Service prerequisite to contempt
In the absence of a proper certificate of electronic evidence, this court finds that the photographs lack probative value and are inadmissible
p. 7Admissibility of electronic evidence
contempt proceedings are quasicriminal and must be exercised with utmost care and only as a last resort
p. 4Nature of contempt jurisdiction

Issues in the judgment

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minor

Internal contradiction: paragraph 14 states the letters do not support the alleged contempt, but the sentence reads 'do support' rather than 'do not support'

minor

Chronology anomaly: the plaintiff's further affidavit is stated to have been sworn on 29 April 2026, while the 1st defendant's replying affidavit is sworn 16 December 2025; also the judgment is dated 9 June 2026 yet refers to an application dated 21 November 2025 - dates appear consistent but affidavit dates in 2026 with submissions of April 2026 are noted for verification

minor

The judgment does not state the full names of the parties or the suit case number; parties are referred to only as 'plaintifi' and '1st defendant'

minor

Presence of multiple defendants (2nd-6th) in attendance but the application targets only the 1st defendant; the coram lists counsel for 4th, 6th, 2nd and 3rd defendants

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, "Kyule v Katu & 5 others (Environment and Land Case Civil Suit E106 of 2024) [2026] KEELC 3487 (KLR)", Case Analysis (2026). Notice of motion dated 21 November 2025 (suit over land parcels Ndithini Mananja Block 1/4068-4073, Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3487/eng@2026-06-09

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