[2017] KEELC 3582 (KLR)
The court found that the applicants failed to provide sufficient and specific evidence to prove that the defendants had disobeyed the court's injunctive orders. The allegations were general and unsupported by documentary or photographic evidence, such as sale agreements or affidavits from buyers, or photographs...
Source-derived case information.
- Citation
- [2017] KEELC 3582 (KLR)
- Parties
- Plaintiff: Benson Mbogo; Plaintiff: Fraser Jackson Utanje; Plaintiff: Rajab Mwadungule Katumbo; Defendant: Madonga Kenga Masha; Defendant: Kassim Guo; Defendant: Bakari alias Beka Bidii Juma; Defendant: Karisa Charles Mwamuye & 6 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 234 of 2015
- Procedural Posture
- Contempt Application / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- AA Omollo
- Legal Topics
- Contempt of Court, Injunctive Orders, Burden of Proof, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Mbogo
Plaintiff
Fraser Jackson Utanje
Plaintiff
Rajab Mwadungule Katumbo
Plaintiff
Madonga Kenga Masha
Defendant
Kassim Guo
Defendant
Bakari alias Beka Bidii Juma
Defendant
Karisa Charles Mwamuye & 6 Others
Defendant
Procedural Posture
Contempt Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the defendants disobeyed the court's injunctive orders by constructing structures and selling portions of the suit property.
- 2 Whether the applicants provided sufficient evidence to prove contempt of court against the defendants.
Ratio Decidendi
The court found that the applicants failed to provide sufficient and specific evidence to prove that the defendants had disobeyed the court's injunctive orders. The allegations were general and unsupported by documentary or photographic evidence, such as sale agreements or affidavits from buyers, or photographs showing new structures. The court emphasized that the burden of proof in contempt proceedings is high, given their quasi-criminal nature, and that the applicants did not meet this threshold. Consequently, the application for contempt was dismissed.
Court Disposition
application dismissed
Orders
- The contempt application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMNENT AND LAND COURT
AT KWALE
ELC CASE NO. 234 OF 2015
BENSON MBOGO…………………………………….……………..…...1ST PLAINTIFF
FRASER JACKSON UTANJE………………………..……….…………2ND PLAINTIFF
RAJAB MWADUNGULE KATUMBO………………….……..………….3RD PLAINTIFF
VERSUS
MADONGA KENGA MASHA……………………………..…...………1ST DEFENDANT
KASSIM GUO…………………………………………….…..………..2ND DEFENDANT
BAKARI alias BEKA BIDII JUMA…………………………………….3RD DEFENDANT
KARISA CHARLES MWAMUYE & 6 OTHERS…………........……..4TH DEFENDANT
RULING
1. The plaintiffs filed this contempt application dated 16th August 2016 seeking for orders that the Court be pleased to cite the Respondent and imprison them for a period not exceeding six (6) months. They have also prayed for costs of the application.
2. The application is supported by the grounds on the face of it inter alia that the defendants have contrary to the orders issued by consent continued to sell the portions of the property and carry out constructions thereon. That it is important to maintain the dignity of the Court and in order to do so it is necessary the defendants herein be cited for contempt and be punished.
3. The application is further supported by the affidavit of Benson Mbogoh. Mr Mbogo deposed that the defendants recently on 11th August 2016 built structures next his house and unlawfully possessing and selling sections of other parts of the suit property. Further if the orders are not granted us the applicants are likely to suffer irreparable harm and gross injustice.
4. The defendants were given time to file a response to the application but none was filed at the time the application was argued. All the same I have to consider whether the application has merit. Contempt proceedings are quasi criminal in nature and the burden of proof lies on the person who avers that the orders of the Court have been disobeyed. The applicants accuse the defendants of disobedience of the Court Order by building structures next to his house and selling sections of the suit land to 3rd parties. The burden of proof lies upon them to show the acts of disobedience.
5. However the applicants have not demonstrated by way of photographs any structures that were built prior to the order being issued and the new/additional structures built while the order was in force. Secondly the applicants have deposed that the defendants have been selling portions of this land inspite of the injunctive order. This averment has also not been supported by any evidence i.e. a sale agreement and or an affidavit from any buyer.
6. I am therefore not satisfied there has been sufficient proof that the orders of the Court issued on 31. 3.2016 were disobeyed. It is not specified if at all which of the defendants built the alleged structures or sold sections of the suit property. The grounds and the affidavit upon which this application is premised consists of generalities that makes it difficult for this Court to come to a conclusion that there has been disobedience of a Court order.
7. Consequently I make a finding that the applicant has failed to meet the bar on proving contempt. The result is the application is dismissed. Since the defendants did not file any response, I award no costs.
Dated and delivered in Mombasa this 24th day of February 2017.
A. OMOLLO
JUDGE