[2018] KEELC 1450 (KLR)
The court found that the plaintiff failed to prove contempt of court by the defendants. The photographs annexed in support of the contempt application were not shown to be different from those previously submitted in support of the injunction application. There was no evidence or pleading that new construction...
Source-derived case information.
- Citation
- [2018] KEELC 1450 (KLR)
- Parties
- Plaintiff: Anastancia Kavisa Joseph Ngungu; Defendant: Abdalla Salim Said; Defendant: Nassir Musa Mohamed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2017
- Procedural Posture
- Contempt Application / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- AA Omollo
- Legal Topics
- Contempt of Court, Injunctive Relief, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Anastancia Kavisa Joseph Ngungu
Plaintiff
Abdalla Salim Said
Defendant
Nassir Musa Mohamed
Defendant
Procedural Posture
Contempt Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the defendants were in contempt of court orders restraining them from entering or constructing on the suit property.
- 2 Whether the plaintiff discharged the burden of proof required to establish contempt of court.
Ratio Decidendi
The court found that the plaintiff failed to prove contempt of court by the defendants. The photographs annexed in support of the contempt application were not shown to be different from those previously submitted in support of the injunction application. There was no evidence or pleading that new construction occurred after service of the order, nor was there proof that the defendants entered the premises or interfered with the property after the injunction was granted. The court held that the plaintiff did not discharge the burden of proof required to establish contempt, and therefore, the application for committal and demolition was without merit and dismissed.
Court Disposition
application dismissed
Orders
- The application dated 2nd February 2018 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 101 OF 2017
ANASTANCIA KAVISA JOSEPH NGUNGU.........PLAINTIFF
-VERSUS-
ABDALLA SALIM SAID
NASSIR MUSA MOHAMED.............................DEFENDANTS
RULING
1. On 22nd March 2017 the plaintiff moved the Court vide her application asking the Court to issue temporary orders of injunction to restrain the defendants from entering and or constructing on parcel of land No Block B on plot No 220/1/M.N known as house No 056 in Mtopanga, Mombasa pending hearing and determination of suit. In support of the motion inter alia were photographs annexed as ‘AKJN 4’. The photos showed houses that have fully built with a roof and some sort of grills fixed on the windows. The orders were granted on 6th December 2017.
2. The plaintiff has presently moved the Court in her notice of motion dated 2nd February 2018 praying for the committal of the defendants to prison for being in contempt of Court. The plaintiff has pleaded that the order was served upon the two defendants but they are hell bent to disobey the Court orders without second thoughts. She has annexed photographs marked as ‘AKJN 3’ to show that the defendants have continued with construction thus causing her distress and anxiety.
3. Before a party is punished for contempt, proof of the contemptuous acts must be made by the party alleging and the standard of proof is required to be above the balance of probabilities. This application was not opposed however this does not exempt the plaintiff from discharging the burden of proving that there was indeed contempt of the Court orders.
4. In the pictures annexed as ‘AKJN 3’ to the affidavit in support of the contempt application, the houses also appear complete with roofs and grills on the windows. The plaintiff has not identified to this Court the difference between the photos annexed to the affidavit in support of the application for the injunctive orders and the present photos. On the face of the two sets of photographs, the grills on the windows, walls and roof appear similar.
5. The plaintiff did not plead that after the order was served, new buildings were constructed and or that the defendants continued with the construction works. Secondly no evidence has been placed before the Court to show that the defendants entered the suit premises after the order was served nor plead the nature of interference being complained of. The orders obtained by the plaintiff were temporary and for purposes of restraining the defendants from constructing and or entering the suit premises.
6. The orders as sought and granted on 6. 12. 2017 did not provide for the demolition of the existing structures before the order of temporary injunction issued. The applicant having not explained the nature of the contempt this Court finds the same is not proved and therefore cannot order for the punishment of the defendants. On the same note, an order for demolition of the structures to purge the contempt which is not proved as prayed does not lie. In effect, I find the application dated 2. 2.2018 as scandalous and without merit. The same is ordered dismissed with no order as to costs as it was not defended.
Dated, signed & delivered at Mombasa this 12th October 2018
A. OMOLLO
JUDGE