Kithae v Tana Water Works Development Agency & another (Environment and Land Miscellaneous Application E005 of 2026) [2026] KEELC 5244 (KLR)
The bottom line
#A Kenyan landowner failed to jail the NLC's CEO for defying compensation orders, because courts treat contempt as a last resort for government bodies.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over contempt applications relating to tribunal orders on compulsory land acquisition
The court has jurisdiction under Article 162(2)(b), Section 13 of the ELC Act and Section 5 of the Judicature Act
Article 162(2)(b) establishes courts with the status of the High Court for environment and land disputes. Section 13 of the ELC Act confers original and appellate jurisdiction including disputes relating to compulsory acquisition of land. Section 5 of the Judicature Act's contempt power applies mutatis mutandis to courts of equal status to the High Court.
Whether contempt should be found against the CEO of the 1st respondent
No - although the tribunal orders were blatantly defied, contempt is a last resort and alternative means of compelling a government entity exist
While the record shows defiance of the tribunal orders, superior courts hold that contempt should be a last resort where no other avenue exists to compel compliance. The 1st respondent is a government entity whose compliance can be compelled through other appropriate proceedings, so committal orders cannot issue.
Whether a private valuation could be allowed in compulsory acquisition
No - valuation in compulsory acquisition is statutorily the mandate of the National Land Commission
Sections 107 and 107A of the Land Act vest in the National Land Commission the mandate to conduct valuation to ascertain market value in compulsory acquisition. Allowing a private valuation would misapply the statute and amount to the court rewriting settled law.
Legal principles established
#- Contempt proceedings in defiance of court orders should be invoked as a last resort where no other avenues exist to compel compliance
- Courts of equal status to the High Court may exercise contempt jurisdiction under Section 5 of the Judicature Act
Court orders
#- 1.The Notice of Motion dated 22nd April 2026 is rejected and dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Articles 165(3) and 162(2)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act; Section 5 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithae v Tana Water Works Development Agency & another (Environment and Land Miscellaneous Application E005 of 2026) [2026] KEELC 5244 (KLR)", Case Analysis (2026). ELC MISC NO. E005 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5244/eng@2026-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.