Kyule v Katu & 5 others (Environment and Land Case Civil Suit E106 of 2024) [2026] KEELC 3487 (KLR) (9 June 2026) (Ruling)

Kyule v Katu & 5 others (Environment and Land Case Civil Suit E106 of 2024) [2026] KEELC 3487 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3487 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit E106 of 2024 AY Koross, J June 9, 2026 Between John Nthuli Kyule Plaintiff and Lenah Wavinya Katu 1st Defendant Jane Njeri Ndungu 2nd Defendant Michael Ndungu Mugwanja 3rd Defendant Mwea Farmers Co. Ltd 4th Defendant Machakos County Land Registrar 5th Defendant David Ndolo Mutavi (As Legal Representative Of Mutuku Kambo) 6th Defendant Ruling 1.This ruling seeks to determine the notice of motion dated 21 November 2025, filed by the plaintiff, which is expressed to have been brought under Article 40 of the Constitution of Kenya, Section 5 of the Judicature Act Cap 8 Laws of Kenya, Section 1A, 3A and 63(c) of the Civil Procedure Act, Order 40 Rule 3, Order 51 Rules 1, 3, 4 and 10 of the Civil Procedure Rules, 2010, and all other enabling provisions of the Law, and it prays for the following reliefs: -a.Spent.b.Spent.c.That notice to show cause does issue against the 1st defendant to appear before the honourable court in person and show cause why she should not be committed to jail or penalised for contempt of court.d.That the 1st defendant be committed to jail for six months or penalised on such terms as the honourable court may determine, for contempt of court for having deliberately disobeyed orders of this court issued on 19 December 2024 and 4th November 2025.e.That the costs of this application be borne by the 1st defendant. 2.The motion is premised on the grounds listed on the face thereof and plaintiff’s supporting affidavit sworn on the instant date, and in summary, he succinctly states that on 19th December 2024, the court ordered that the existing status quo regarding land parcels nos. Ndithini Mananja Block 1/4068, 4069, 4070, 4071, 4072 and 4073 (the resultant subdivisions of Ndithini Mananja Block 1/171), being the disputed land be preserved; no one was to interfere with whoever was in possession until the hearing and determination of an application that sought injunctive relief. However, in June and July of 2025, the 1st defendant openly violated these orders by entering the land and grazing livestock, which caused damage to the plaintiffs’ crops. 3.Subsequent injunctive orders were issued on 4th November 2025, specifically prohibiting interference with the disputed land pending the hearing and determination of the suit. Despite the service of these orders, the 1st defendant once again trespassed and grazed livestock on the disputed land. These incidents were reported to the police and local administrative officers. 4.The motion is opposed by the replying affidavit of the 1st defendant, sworn on 16 December 2025. In summary, she avers that none of the court’s orders has been disobeyed since their issuance. The animals shown in the photographs do not belong to her. The plaintiff has failed to prove his assertions to establish that the animals in question belong to her or that the grazing took place on the suit land, or that those attending the livestock were her employees. 5.Additionally, it stated that the photographs did not comply with Section 106B of the Evidence Act, Chapter 80, Laws of Kenya, which requires an electronic certificate to accompany any photographic or electronic evidence. Further, the absence of this mandatory certificate meant that the impugned photographs, presented as annexures, should be expunged from the court record. Lastly, the letters from the chief, assistant chief, and agricultural officer do not specify the property where the alleged crop destruction occurred. 6.In a brief rejoinder, the plaintiff’s further affidavit, sworn on 29 April 2026, informs the court that the photographs show the 1st defendant’s servant, Bernard Kimanthi, grazing on the land. The 1st defendant seeks to rely on technicalities, such as the absence of a certificate of electronic evidence. In any case, the photographs were taken by him using a mobile phone, namely: Make/Model: ITEL ; Serial Number/IMEI: 3560. The 1st defendant’s illegal activities were also witnessed by her neighbours, who could confirm that the grazing was conducted on the suit land and that the livestock and servants depicted in the photographs belong to the 1st defendant. In support, he presented as evidence a supporting affidavit from an alleged neighbour, Regina Koki Nzive of 29 April 2026, who states that she witnessed the earlier acts of trespass. 7.The motion is canvassed by written submissions. The plaintiff’s submissions, filed by its law firm on record, Ms. Fred K. Musyimi & Associates Advocates, are dated 29 April 2026. As for the 1st defendant, her law firm on record, Ms. Asena & Asena Advocates, filed written submissions dated 27 April 2026. Accordingly, having carefully considered the motion, its grounds, the affidavits, the rival submissions, and guided by the law and judicial precedents, the single issue for determination is whether the 1st defendant is in contempt of court orders, and we address it. 8.Regarding the issue of contempt relief, it must be observed that Section 5 of the Judicature Act does not prescribe a procedure for initiating contempt proceedings. As such, this court must adopt the procedure applicable in the High Court of Justice in England and Wales. These procedures were thoroughly examined in the Court of Appeal decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR. 9.Of significance, this court’s authority to hear contempt proceedings is derived from Section 29 of the Environment and Land Court Act. Accordingly, it is prudent for this court to stipulate the relevant law. Rule 81.4 of the England and Wales Civil Procedure Rules, which deals with the ingredients of contempt applications, provides thus: -“(1)Unless and to the extent that the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation.(2)A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—(a)the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);(b)the date and terms of any order allegedly breached or disobeyed;(c)confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;(d)if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;(e)whether a penal notice had been added to the front of any order allegedly breached or disobeyed included a penal notice;(f)the date and terms of any undertaking allegedly breached;(g)confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;(h)a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;(i)that the defendant has the right to be legally represented in the contempt proceedings;(j)that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;(k)that the defendant may be entitled to the services of an interpreter;(l)that the defendant is entitled to a reasonable time to prepare for the hearing;(m )that the defendant is entitled but not obliged to give written and oral evidence in their defence;(n)that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;(o)that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;(p)that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;(q)that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;(r)that the court’s findings will be provided in writing as soon as practicable after the hearing; and(s)that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.” 10.Unfortunately, at the time of writing this decision, the plaintiff did not file a list of authorities to substantiate the case law and books he cited in his submissions. Nevertheless, concerning jurisprudence, as held in the Supreme Court of Kenya decision of Republic v Ahmad Abolfathi Mohammed & Sayeed Mansour Mousavi [2018] KESC 51 (KLR), contempt proceedings are quasi-criminal and must be exercised with utmost care and only as a last resort; an applicant must establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the court order. 11.Further, as stated in the decision of Aaron Gitonga Ringera & 3 Others v P. K. Muite & Others, Nairobi HCCC No. 1330 of 1991, which was cited with approval and summarized in KAR v JR [2023] KEHC 18588 (KLR), in contempt proceedings, (a)there must be an existing court order capable of being disobeyed;(b)the alleged contemnor must have been made aware of the existence of the court order; and (c)there must be shown to be a breach (disobedience) of the said court order. 12.Usually, as stated in the decision of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234, which was cited with approval in Republic v Ahmad (supra), the standard of proof in contempt proceedings is higher than the balance of probabilities, approaching but not quite beyond a reasonable doubt. This decision resonates with Rule 81.4 (o) of the England and Wales Civil Procedure Rules, which provides that the court will hold a person in contempt only if it is satisfied beyond a reasonable doubt of the facts constituting contempt and that they do constitute contempt. Therefore, this is the standard that will be applied to the motion. 13.The 1st step in contempt proceedings is service. In this case, the ruling of this court of 4 November 2025 was rendered in the presence of the 1st defendant’s counsel, and this court is satisfied with the service pertaining to this. Respecting the orders of 19 December 2024, this court is not satisfied with the service and finds that, in the absence of proof of service upon the 1st defendant, she cannot be held in contempt of orders to which she was not privy. 14.Concerning the ruling of 4 November 2025, and in consideration of the applicable standard of proof, this court concurs with the arguments presented by the 1st defendant that the plaintiff’s allegations and evidence failed to meet the legal threshold. Firstly, the correspondence from the agriculture and administrative officers were issued on various dates, namely 13 June 2025, 9 July 2025, and 23 July 2025, all of which predate the court’s ruling. Furthermore, these letters fail to specify whether the subject matter pertains to the suit land. Accordingly, this court finds that these letters do support the alleged acts of contempt to the required standard. 15.Secondly, there is the issue of the admissibility of the photographs for contravening Sections 106A and 106B of the Evidence Act, which provide as follows: -“106A.Section 106B to apply in proof of electronic records.The contents of electronic records may be proved in accordance with the provisions of section 106B.106B.Admissibility of electronic records.(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as "computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)The conditions mentioned in subsection (1), in respect of a computer output, are the following—(a)the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;(b)during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;(c)throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.(3)Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether—(a)by combination of computers operating in succession over that period; or(b)by different computers operating in succession over that period; or(c)in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—(a)identifying the electronic record containing the statement and describing the manner in which it was produced;(b)giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;(c)dealing with any matters to which conditions mentioned in subsection (2) relate; and(d)purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate),shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.” 16.These provisions of the law were subject to interpretation by the binding Court of Appeal decision in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR), where the court held that the law is expressed in mandatory terms, with the aim of ensuring the safety, authenticity, and integrity of the electronic record intended for production. Furthermore, it held that the format of a certificate of electronic evidence is not rigid, as averments in the affidavit also meet the requisite threshold. It is important to note that, contrary to the plaintiff’s assertions, this is a weighty matter. 17.In this matter, and in agreement with the 1st defendant, the further affidavit fails to meet the requisite legal standards due to several deficiencies concerning the handling of the photographs subsequent to their purported collection, including processing and uploading onto electronic media prior to printing in hard copy. Notably, the court has not been informed of the date on which these photographs were taken. In the absence of a proper certificate of electronic evidence, this court finds that the photographs lack probative value and are inadmissible. 18.In the end, this court hereby finds that the notice of motion dated 21 November 2025 is not merited. It is dismissed with costs in the cause. A mention date shall be given for pretrial directions.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Malonza holding brief for Mr. Sena for 1st defendant/respondent.Mr. K. Musyimi for 4th and 6th defendants.Mr. Simiyu for Mr. Wabuge for 2nd and 3rd defendants.Mr. F. Musyimi for plaintiffs/applicants