Kyule v Katu & 5 others (Environment and Land Case Civil Suit E106 of 2024) [2026] KEELC 3487 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st defendant is in contempt of the court orders issued on 19 December 2024 and 4 November 2025
Key legal issues
#Whether the 1st defendant was in contempt of the orders of 19 December 2024 and 4 November 2025
No contempt established; the application was dismissed
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.
Admissibility of photographic (electronic) evidence in contempt proceedings
Photographs inadmissible for non-compliance with Sections 106A and 106B of the Evidence Act
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.
Service as a precondition to contempt liability
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 21 November 2025 is dismissed with costs in the cause
- 2.A mention date shall be given for pretrial directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs of the application borne by the 1st defendant
Application dismissed with costs in the cause against the plaintiff
Costs
Application dismissed with costs in the cause
Quotable passages
#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.
the standard of proof in contempt proceedings is higher than the balance of probabilities, approaching but not quite beyond a reasonable doubt
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
In the absence of a proper certificate of electronic evidence, this court finds that the photographs lack probative value and are inadmissible
contempt proceedings are quasicriminal and must be exercised with utmost care and only as a last resort
Issues in the judgment
#Internal contradiction: paragraph 14 states the letters do not support the alleged contempt, but the sentence reads 'do support' rather than 'do not support'
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
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'
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.