Chunky Ltd & another v Ndune & 11 others (Environment and Land Constitutional Petition 1 of 2022 & Environment and Land Case 273 of 2017 (Consolidated)) [2026] KEELC 4061 (KLR)
The bottom line
#A Kenyan court dismissed a contempt claim over land excavation because the applicants relied on a surveyor who was himself a party to the case, so their evidence was inadmissible.
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 Notice of Motion dated 4th May, 2026 seeking to cite the Directors of the 1st and 2nd Respondents for contempt of court for willful disobedience of the Orders issued on 24th July, 2017 and preserved by consent is merited
- 2.Whether the Applicants have demonstrated sufficient grounds to warrant committal of the said Directors to civil jail or imposition of other sanctions
- 3.Whether the Applicants have established sufficient basis for the intervention of the OCS, Mombasa Police Station and/or other police officers to provide security during enforcement of the status quo orders
- 4.Whether the activities complained of relate to the suit properties MN/VI/909 and MN/VI/910 or to Plot No. MN/VI/224, and whether such distinction affects the scope and enforceability of the subsisting Court Orders
- 5.Who will bear the costs of the Notice of Motion dated 4th May, 2026
Key legal issues
#Whether contempt of the status quo orders of 24th July 2017 was proved
Not proved; the Applicants failed to discharge the burden of proof at the elevated quasi-criminal standard
The orders of 24th July 2017 and the consents of 13th March 2018 and 1st April 2019 were clear and the Respondents knew of them, having participated in proceedings preserving them. However, the only evidence of excavation was a survey report by Mr. Edward Kiguru, the 12th Respondent in the consolidated lead file, whose evidence could not be admitted as independent expert opinion under Section 48(2) of the Evidence Act. Without that report there was no empirical proof that the Respondents excavated the suit properties.
Whether committal of the Directors to civil jail was warranted
No; the threshold for coercive sanctions was not satisfied
Since contempt itself failed, committal could not follow. The Court found the Respondents' conduct not deliberate and noted the boundary confusion between Plot MN/VI/224 and the suit parcels, which are matters for the full trial. Lack of a certificate for photographs was immaterial under Article 159(2)(d) of the Constitution.
Whether activities related to Plot No. MN/VI/224 fall within the scope of the status quo orders
The distinction is a serious boundary issue to be interrogated at full trial
The Respondents asserted that the complained-of activities related to Plot MN/VI/224, lawfully transferred to Chunky Limited, distinct from MN/VI/909 and MN/VI/910. They invoked Section 18(2) of the Land Registration Act on boundary disputes. The Court held that even if boundary disputes exist, the proper course is to await the full trial for clarification of issues.
Legal principles established
#- Court orders must be obeyed unless and until set aside; the only recourse against an order is review, variation, setting aside or appeal
- To sustain committal for contempt, the order must be clear and precise, the contemnor must have known it, disobedience must be wilful, and the standard of proof is higher than balance of probabilities though below beyond reasonable doubt
- A party to a suit cannot be admitted as an independent expert witness in his own case, as this offends the rule against bias
- Costs follow the event unless compelling reasons warrant departure
Court orders
#- 1.The Notice of Motion application dated 4th May, 2026 be and is hereby found to lack merit and is dismissed in its entirety
- 2.Parties are sternly warned that any attempt to breach Court orders will attract severe legal consequences
- 3.Should it be necessary, the Court shall conduct a Site Visit (Locus in Quo) pursuant to Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010
- 4.The scheduled full hearing of the matter on 24th July, 2026 through physical means shall be retained
- 5.Each party to bear its own costs of the Notice of Motion application dated 4th May, 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 5 of the Judicature Act, Cap. 8; Section 29 of the Environment and Land Court Act, No. 19 of 2011; Sections 1A and 3A of the Civil Procedure Act, Cap. 21
- Consolidated with
- Mombasa ELC Case No. 405 of 2017, ELC Kwale Petition No. 1 of 2022 (Chunky Limited & Curly Wurly Limited v Patrick Ndune & 11 Others)
Relief refused
#Citation of the Directors (Harji Govind Ruda, Renuka H.G. Ruda and Dinesh Kumar Zaverchand Jetha) for contempt
Applicants failed to prove contempt: the report of Surveyor Kiguru, a party to the consolidated suit, could not be relied upon as independent expert evidence, leaving a lack of empirical evidence of excavation
Committal of the Directors to civil jail for six months
The strict threshold for contempt, including wilful disobedience proved to the elevated standard, was not met
Direction to the OCS Mombasa and police officers to provide security during enforcement of status quo orders
No sufficient basis established
Order that the Respondents purge their contempt by remedying damages to the suit properties
Contempt was not proved; the application was dismissed in its entirety
Costs
Each party to bear its own costs of the Notice of Motion application dated 4th May, 2026.
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.
That the Notice of Motion application dated 4th May, 2026 be and is hereby found to lack merit and hence it is dismissed in its entirety.
That each party to bear its own costs of the Notice of Motion application dated 4th May, 2026.
It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged.
Thus, it would be a travesty of justice to rely on his report.
The standard of proof for contempt is higher than the standard of proof required in ordinary civil cases of the balance of probabilities, although the same is slightly below the standard of beyond reasonable doubt required in criminal cases.
That should it be necessary, the Honourable Court shall conduct a Site Visit (“Locus in Quo”) pursuant to the provision of Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010 to inspect and establish the situation on the ground and draw its observation.
Issues in the judgment
#Internal contradiction in the contempt finding: the Court states it does not find the Directors guilty of contempt but immediately follows with wording suggesting their conduct does warrant sanction
Confusion as to the application date: the application is dated 4th May, 2026 throughout, but the Court variously refers to it as dated 26th March, 2026
Contradiction in the damages figure in the NLC replying affidavit narrative: the sum is written out in words inconsistently with the numerals
Parties were directed to file written submissions but the judgment records none were filed, yet the judgment analyses 'cited authorities filed by the parties'
Inconsistency in party designation: the Applicants are described in places as 4th & 5th Respondents/Applicants and the Respondents as Petitioners/Respondents, reflecting the consolidated proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chunky Ltd & another v Ndune & 11 others (Environment and Land Constitutional Petition 1 of 2022 & Environment and Land Case 273 of 2017 (Consolidated)) [2026] KEELC 4061 (KLR)", Case Analysis (2026). ELC Case No. 273 of 2017 (consolidated as ELC Petition No. 1 of 2022, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4061/eng@2026-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.