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ELCDismissedELC No. 4 of 2019 (Malindi)· [2024] KEELC 6731 (KLR)

Applicant v 1st, 2nd, 3rd, 4th and 5th Defendants (notice of motion dated 22/4/2024)

Environment and Land Court
15 October 2024
MNMwangi Njoroge
2,368 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Applicant, by notice of motion dated 22/4/2024, sought, among other things, an order compelling the 2nd, 3rd and 4th Defendants to disclose under oath the names and service numbers of officers who registered Parcel No. Kilifi/Jimba/1125 as entry no. 9 dated 13.2.2020 of PID No. 12 of the Kilifi/Jimba Registration Section and registered its subdivision into three parcels (Kilifi/Jimba/1719, 1720 and 1721), allegedly in breach of status quo and prohibitory orders made in the pending suit and related proceedings. The Applicant intended to use the names to pursue contempt proceedings against the directors of the 1st Defendant and the officers concerned. The court directed that prayer (b) be canvassed first by written submissions. The Applicant argued, citing Article 75 of the Constitution and case law, that public officers bear personal liability for breach of the integrity chapter. The Defendants opposed, contending the amendment of the Registry Index Map and subdivision were done in compliance with mandamus orders in ELC JR No. 7 of 2019 and a Court of Appeal judgment, and that contempt cannot be presumed without a fair trial. The court framed a single issue: whether the Defendants should be compelled to disclose the officers' identities. Applying Article 35(1) of the Constitution and the Access to Information Act, 2016, and the Karume principle that prescribed procedures must be strictly followed, the court held that the Applicant had to first make a formal request for the information before approaching the court. Having failed to do so, the Applicant's prayer was an abuse of process. Prayer (b) was denied and struck out summarily; the remainder of the application was set down for hearing, with directions on filings and a mention on 5/11/2024. No costs order was made.

Key legal issues

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01

Whether the Defendants could be compelled to disclose the names of officers involved in the impugned registration without prior resort to the Access to Information Act procedure

Holding

No. The Applicant was required to first make a formal request for the information under the Access to Information Act, 2016 before invoking the court's assistance; failing which the prayer was an abuse of process.

Reasoning

Article 35(1) grants every citizen access to state-held information, actualized by the Access to Information Act, 2016, which sets out the request procedure (ss. 4, 8, 9), a 21-day response period and a review mechanism under s.14 at the Commission on Administrative Justice. Relying on Speaker of the National Assembly v Karume, where a clear statutory procedure exists it must be strictly followed. The Applicant demonstrated no such attempt, so the relief was improper.

p. 5
02

The standard of proof and target of contempt proceedings

Holding

Contempt must be proved to a standard higher than the balance of probabilities, and orders punishing contemnors must be directed at named persons identified in the order.

Reasoning

The court observed that orders punishing an alleged contemnor are never issued at large but must be directed at a particular person named in the order alleged to have disobeyed or aided the disobedience. This framed the context for why the Applicant sought the officers' identities, though the court did not decide the contempt question itself, confining the ruling to prayer (b).

p. 4

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Before seeking judicial intervention to compel disclosure of information held by a public body, a party must first make a formal request under the Access to Information Act, 2016
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, and contempt orders must be directed at a named person

Court orders

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  1. 1.Prayer (b) of the notice of motion dated 22/4/2024 is denied and struck out summarily
  2. 2.The application is set down for hearing in respect of the remaining prayers (c), (d), (e), (f) and (g)
  3. 3.Applicant to file and serve submissions in respect of prayers (c), (d), (e), (f) and (g) within 7 days from the date of the ruling
  4. 4.Respondents to respond within 7 days of service
  5. 5.The 2nd, 3rd and 4th Defendants shall not be required to answer prayer (c)
  6. 6.Application to be mentioned on 5/11/2024 for issuance of a ruling date
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court) - implied; application under the court's inherent jurisdiction in a pending suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Applicant v 1st, 2nd, 3rd, 4th and 5th Defendants (notice of motion dated 22/4/2024)", Case Analysis (2024). ELC No. 4 of 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6731/eng@2024-10-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.