Marko Oyaro Chweya alias Mark Kerambo Makemba Suing as Legal Representative of Makemba Chogo v Esther Karugi Gichogo & another
The bottom line
#A Kenyan land court refused to jail defendants for disobeying a decree because the applicant failed to prove contempt, even though nobody filed a response.
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 application for contempt is merited
- 2.Who to bear the costs of the application
Key legal issues
#Whether the respondents committed contempt of the court decree
No; contempt was not proved to the required standard. The uncontroverted affidavit evidence was undermined by the oral testimony of the area chief, who discounted the alleged demolitions and attributed the felling of trees to the applicant himself.
The court set out the four elements of contempt and accepted that a valid decree existed and that the parties knew of it. However, the area chief testified that he was unaware of any demolished house or latrine, that the trees were felled by the applicant, and that the applicant was stopped and reported the matter to police. The court held the alleged acts were not committed by the respondents and the standard of proof was not met.
Effect of non-filing of a response to the application
Uncontroverted affidavit facts remain uncontroverted, but the court must still satisfy itself that the applicant has discharged the evidentiary burden to the required standard.
Relying on Habo Agencies Ltd v Musingo, the court acknowledged that facts deponed to and not replied to by affidavit are uncontroverted. But it held that this does not oblige the court to allow the application as prayed; the claimant's standard of proof is not lowered by the absence of a response and must be discharged fully.
Whether the absence of submissions by the applicant precluded determination
No; submissions are neither evidence nor pleadings, and the application could be determined on the evidence alone.
The court noted the applicant did not file submissions (despite earlier recording that only the applicant filed submissions) and, citing Moi v Muriithi, held that submissions are parties' 'marketing language' and do not constitute evidence; many cases are decided without submissions based only on evidence presented.
Legal principles established
#- Failure by the adverse party to respond to affidavit evidence does not lower the applicant's standard of proof, which must still be discharged fully
- Submissions are neither evidence nor pleadings; a matter may be decided without them
- Four elements must be proved for contempt: a valid order, service or knowledge of it, actions contrary to it, and deliberateness
- Standard of proof in committal proceedings is higher than balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.The application dated 4th March 2024 is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 5 of the Judiciary Act and Order 40 of the Civil Procedure Rules; punishment for contempt under Section 29 of the Environment and Land Court Act
Relief refused
#Citation and committal of the defendants to civil jail for six months or a heavy fine for disobeying the court order/decree
Contempt not proved to the required standard; the area chief's testimony discounted the alleged acts and attributed the felling of trees to the applicant himself
Order that M/S Kerati Muriri Auctioneers flash out the respondents from the land as per the court decree
Application dismissed as unmerited
Costs
Costs of the application to the Respondent
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.
I therefore find that the application is not merited and I dismiss it with costs to the Respondent. Orders accordingly.
failure by the adverse party to file pleadings in response to the alleged position does not in any way lower the claimant’s standard of proof. That has to be discharged fully.
In order for one to be found guilty of the Contempt of Court, four (4) elements must be proved.
the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt.
Court orders are not issued in vain: they must be obeyed, respected and/or fulfilled.
Issues in the judgment
#Contradiction on whether the applicant filed submissions
Inconsistent decree dates
Judgment date (23rd September 2026) postdates submissions dated 18th May 2026 in a 2024 application, suggesting typographical errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marko Oyaro Chweya alias Mark Kerambo Makemba Suing as Legal Representative of Makemba Chogo v Esther Karugi Gichogo & another", Case Analysis (2026). ELC Case No. 662 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6257/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.