Nthenge v Muoki & another (Environment & Land Case E005 of 2024) [2025] KEMC 126 (KLR)
The bottom line
#A Kenyan court dismissed a contempt claim because a single unverified photograph could not prove someone deliberately broke a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a proper preliminary objection
It was not; none of the grounds raised a pure point of law. The res judicata and sub-judice grounds required evidence, and the objection was improperly supported by an affidavit, which the court disregarded.
Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct. The grounds on res judicata, sub-judice, exhaustion of the land adjudication process and non-joinder all required ascertainment of facts through evidence and could not be resolved on the pleadings alone. Further, an affidavit filed in support purported to testify to facts and was akin to a defence, which is impermissible.
Whether the respondents were in contempt of the order of 29/1/2024
Contempt was not proved. Although the defendants' replying affidavit of 12/2/2024 attached a copy of the order and proved their knowledge of it, the plaintiff failed to prove breach to the required standard.
The plaintiff relied on a photograph of unknown source, date, place and authorship, which did not link the respondents to any construction. The plaintiff did not state she saw the defendants in breach. The affidavit of service was defective in that the process server did not disclose how he knew or identified the respondents or where he found them. Contempt being quasi-criminal, with liberty at stake, proof must meet the heightened standard, which was not attained.
Legal principles established
#- A preliminary objection must be a pure point of law; it cannot be supported by or responded to with an affidavit, and cannot be raised where facts must be ascertained or evidence adduced
- Issues of res judicata and sub-judice are not pure points of law capable of determination by way of preliminary objection because they require evidence
- The standard of proof in contempt proceedings is higher than a balance of probabilities but below beyond reasonable doubt
- Civil contempt requires proof of willful and deliberate disobedience of a clear and unambiguous order of which the contemnor had knowledge
- A magistrates' court has jurisdiction to punish for contempt of its orders
Court orders
#- 1.The preliminary objection dated 7/12/2024 is dismissed
- 2.The application dated 19/2/2024 is dismissed
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Section 10 of the Magistrates Court Act (power to punish for contempt); Order 40 rule 3 and Order 22 rule 28(1) of the Civil Procedure Rules; sections 1A, 3A and 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gichinga v Sayiore & another (Environment and Land Case 752 of 2017) [2026] KEELC 2163 (KLR)[2026] KEELC 2163 (KLR)16 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Nthenge v Muoki & another (Environment & Land Case E005 of 2024) [2025] KEMC 126 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/126/eng@2025-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.