[2021] KEELC 2880 (KLR)
The court found that, although the Petitioner alleged continued trespass and non-compliance with the court's orders by the Respondents, he failed to provide any evidence, such as photographs or other material, to substantiate the claim of ongoing contempt. Given the quasi-criminal nature of contempt proceedings and...
Source-derived case information.
- Citation
- [2021] KEELC 2880 (KLR)
- Parties
- Applicant: David Gitau Thairu; Respondent: The County Government of Machakos; Respondent: The Governor, Machakos County Govt; Respondent: The Honourable Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 137 of 2018
- Procedural Posture
- Contempt Application / Ruling on Notice of Motion for Contempt
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Compulsory Acquisition, Contempt of Court, Enforcement of Judgments, Right to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Gitau Thairu
Applicant
The County Government of Machakos
Respondent
The Governor, Machakos County Govt
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Contempt Application / Ruling on Notice of Motion for Contempt
Legal Issues
- 1 Whether the 2nd Respondent, the Governor of Machakos County, is in contempt of court for failing to comply with the court's judgment and orders issued on 30th July, 2020 and 25th September, 2020.
- 2 Whether the Petitioner has provided sufficient evidence to prove deliberate disobedience of the court's orders by the Respondents.
Ratio Decidendi
The court found that, although the Petitioner alleged continued trespass and non-compliance with the court's orders by the Respondents, he failed to provide any evidence, such as photographs or other material, to substantiate the claim of ongoing contempt. Given the quasi-criminal nature of contempt proceedings and the higher standard of proof required, the court held that the Petitioner did not discharge the burden of proof necessary to establish contempt. In the absence of sufficient evidence demonstrating deliberate disobedience of the court's decree, the application for contempt could not be sustained and was therefore dismissed.
Court Disposition
application dismissed
Orders
- The Application dated 26th November, 2020 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. PETITION NO. 137 OF 2018
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 40 AND 64 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 20(2), 21(1), 27, 40(1) AND 40(3) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE LAND ACT, 2012 AND THE LAND REGISTRATION ACT, 2012
AND
IN THE MATTER OF COMPULSORY ACQUISITION OF LAND REFERENCE NUMBER 22423, MACHAKOS WITHOUT DUE PROCESS AND IN CONTRAVENTION OF THE CONSTITUTION OF KENYA, 2010
BETWEEN
DAVID GITAU THAIRU............................................................................PETITIONER
AND
THE COUNTY GOVERNMENT OF MACHAKOS.......................1ST RESPONDENT
THE GOVERNOR, MACHAKOS COUNTY GOVT....................2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL..............................3RD RESPONDENT
RULING
1. In the Notice of Motion dated 26th November, 2020, the Petitioner has prayed for the following orders:
a. That this Honourable Court be pleased to find the 2nd Respondent Governor, County Government of Machakos is in contempt of the Judgment and orders of Honourable Justice O. A. Angote in the High Court of Kenya, ELC Petition Case Number 137 of 2018 issued on 30th July, 2020 and 25th September, 2020.
b. That the said Governor of the County Government of Machakos be arrested and committed to civil jail for a term not exceeding six (6) months.
c. That this Honourable Court be pleased to order that the Governor, County Government of Machakos should not be heard by the court until he purge the contempt.
2. The Application is supported by the Affidavit of the Petitioner who deponed that he is the registered owner of land known as 23423, Machakos; that he lodged a Petition seeking to prohibit the Respondents from trespassing and dumping on his land and that the Respondents have refused to comply with the orders of the court.
3. The Petitioner deponed that despite serving the Respondents with the Judgment of the Court, the Governor, County of Machakos, has refused, ignored and neglected to act and comply with the decree and that as a result of the refusal of the Respondents to comply with the orders of the court, he has continued to suffer. Although the Respondents were served with the Application, they did not file a response.
4. Contempt proceedings are quasi-criminal in nature. That being the case, it is always incumbent on the Applicant to prove that the alleged contemnors’ actions were deliberate in the sense that they deliberately or willfully acted in a manner that breached the Judgment.
5. Although the Petitioner has alleged that the Respondents have continued to trespass on the suit property even after the Judgment of this court, no evidence was placed before me by way of photographs or otherwise to prove the continued trespass or dumping of waste on L.R. Number 23425.
6. As was held in the case of Katsuri Limited vs. Kapurchand Depar Shah (2016) eKLR, contempt of court is an offence of a criminal character of which a man may be sent to prison. As such, it must be satisfactorily proved by the Applicant. The standard of prove in contempt proceedings is always higher than proof on a balance of probabilities but not beyond reasonable doubt (See (Katsuri Limited (supra).
7. In the absence of evidence to show that the Respondents have disobeyed the decree of this court of 30th July, 2020, I dismiss the Application dated 26th November, 2020 but with no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 11TH DAY OF JUNE, 2021.
O. A. ANGOTE
JUDGE