Mbuugua v Mungua (Environment and Land Appeal E20 of 2021) [2025] KEELC 6377 (KLR)

3. The Respondents case was that he purchased the suit property from one James Mugo Njau who had been allotted the suit property by the Nairobi City Council. The Plaintifi states that the said James Mugo Njau donated a power of attorney over the property to him. It was the Plaintifis contention that on or about 19th October 2019, the Appellant trespassed on the suit property in respect of which he had obtained a certificate of lease and was paying rates. 4. The Respondent filed an application seeking injunctive orders against the Appellant. This application was allowed by Hon DM Kivuti on the 28th October 2019. On the 13th August 2020 the Respondent was before the court with an application dated 15th August 2020 seeking orders that the Appellant who had been served with the orders for injunction be committed to civil jail. The Appellant opposed the application vide a Replying Afidavit dated 22nd September 2020 in which he insisted that he was not constructing on Plot No F as alleged rather he was construction on Plot No G Harambee infil. He produced a letter of allotment in the name of Eunice Matiri Gichungi for the said plot. 5. In a Ruling delivered on 19th March 2021, the learned magistrate found that the Appellant had in violation of existing injunctive orders commenced construction on the suit property by collecting construction materials. The court thus found that the Appellant was in contempt and allowed the application to commit the Appellant to civil jail for disobeying the orders of the court made on 28th October 2019. 6. The Appellant has appealed against this decision on the grounds as enumerated in the Memorandum of appeal. The parties opted not to file any submissions. Having considered the grounds of appeal, the court distills the sole issue for determination is whether the learned magistrate was correct in finding there was contempt. Arising from this are the following questions;Whether the learned magistrate erred in failing to find and hold that the orders made on 28th October 2019 were in respect of Plot NO F Harambee infills and not Plot No G Harambee Infills EstateWhether the court erred by relying on the photographic evidence that did not identify the Appellant as the one supervising the alleged construction work 7. This being a first appeal, this court is under a duty to reconsider the evidence adduced and analyze it so as to be able to reach its own independent conclusions and thus determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law, and will only depart from the findings by the trial Court if they were not based on evidence on record or where the said Court is shown to have acted on wrong principles of law or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah (1968) EA 93 . 8. In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR the Court held that: “this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefiy put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In the instant case this appeal is in respect of an application which was determined on the basis of afidavit evidence. As such this court is on an equal footing with the trial court as regards the evidence. 9. Order 40 Rule 3 of the Civil Procedure Rules provides that “In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6377/eng@2025-05-15 2

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and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.” 10. The courts have pronounced the elements of contempt. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR, the court held, “ 38. The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide.’[40] A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe he/she is entitled to act in the way claimed to constitute the contempt. In such a case good faith avoids the infraction. [41] Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).[42] 39. These requirements – that is the refusal to obey should be both willful and mala fides, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt – accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the ofience is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces.[43] Honest belief that non-compliance is justified or proper is incompatible with that intent.” 11. The standard of proof in cases of contempt of court was explained in Mutitika v Baharini Farm Limited [1985] KLR 229, 234 where the Court of Appeal held that, “In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an ofience which can be said to be quasi-criminal in nature.” 12. In the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR the Court extensively discussed the issue of the burden and standard of proof for contempt thus, “ …there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.” 13. The essential elements that a court should consider therefore are that; the contemnor had knowledge of the existence of the order; that the contemnor deliberately and willfully disobeyed the order. The standard of proof of these two elements is slightly higher than a balance of probabilities but below reasonable doubt. 14. Regarding the instant cases the Appellant does not deny knowledge of the existence of the order but states in the Replying Afidavit that by the time of filing the application for contempt the order had lapsed as the exparte interim orders had only been issued pending the hearing on the 5th November 2019. This fact is not discounted by the Respondent, leaving room for the argument that there was no valid order at the time to be disobeyed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6377/eng@2025-05-15 3

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15. A more critical issue is that the Appellant raised the fact that the construction was taking place on an adjacent plot in respect of which there is no dispute hence there can be no contempt. This argument was not discounted as the Respondent did not file a further afidavit to controvert this defence by the Appellant. The court did not make any reference to this issue or resolve the issue. In view of the fact that the existence of Plot No G Harambee infills was not disputed at all, it was an issue that raised what I would term a higher than probable possibility that there was another explanation to the Respondents claim of ongoing construction. I find that the learned magistrate failed to consider a material issue and consequently reached a decision that was contrary to the evidence. 16. The upshot of the foregoing is that the appeal succeeds and the court makes the following orders; a. The appeal is allowed and the order of the learned magistrate committing the Appellant to civil jail and staying the delivery of the Ruling on the application is hereby set aside b. The matter is referred back for hearing of the application dated 23rd October 2019 and the main suit before a difierent court c. The Appellant shall have the costs of this appeal. JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 15TH DAY OF MAY 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Ndambiri for Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6377/eng@2025-05-15 4

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