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ELCDismissedNotice of Motion dated 10th June, 2024 (arising from appeal against Makindu ELC Case No. 10 of 2011)

Mutie v Galgalo (Environment and Land Appeal E001 of 2022) [2025] KEELC 3802 (KLR)

Environment and Land Court
15 May 2025
EOE. O. Obaga
1,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's bid to jail a rival for contempt failed because the judgment being enforced had been lawfully stayed pending appeal.

What this practically means

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Executive summary

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The Applicant, judgment-creditor in Makindu ELC Case No. 10 of 2011, moved the Environment and Land Court by Notice of Motion dated 10th June, 2024 under Order 40 Rule 3(1) of the Civil Procedure Rules, 2010, seeking committal of the Appellant/Respondent to civil jail for up to six months, warrants of arrest, and authorization for the OCS Kibwezi Police Station to arrest him for allegedly breaching the permanent injunction issued in his favour on 17th December, 2021, by trespassing and constructing on Plot No. 268 Kibwezi Township. The Respondent opposed, asserting that the court had granted him conditional stay of execution upon payment of Kshs.100,000/-, that the structures predated the judgment, that the Applicant's photographs lacked a certificate under Sections 106A and 106B of the Evidence Act, and that the Applicant himself had locked the kiosks on the property. The court framed a sole issue: whether the Applicant proved deliberate breach of the lower court's judgment. Applying the Samuel M. N. Mweru test for civil contempt and the authorities in Z-U-DG v SJK-U, Berliner Industriebank v Jost and Koinange Investments, the court held that the stay orders suspended enforceability of the decree, and the Applicant failed to demonstrate breach or wilful disobedience. The application was dismissed with costs to the Appellant/Respondent on 15th May, 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant has demonstrated that the Respondent deliberately breached the terms of the judgment and decree of the lower court delivered on 17th December, 2021, so as to be held liable for contempt of court

Key legal issues

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Whether the Respondent was in contempt of the lower court's judgment and decree

Holding

No; the lower court judgment had been stayed by the ELC on conditions, the Applicant did not show non-compliance with the stay orders, and the decree was not enforceable pending appeal

Reasoning

The court applied the four-element test for civil contempt from Samuel M. N. Mweru. Although a permanent injunction issued against the Appellant in the lower court, the ELC granted conditional stay of execution on 30th April, 2024 upon deposit of Kshs.100,000/-. Following Z-U-DG v SJK-U and Koinange Investments, a stayed decree cannot be enforced or breached by execution. The Applicant failed to demonstrate the Appellant's deliberate breach or non-compliance with the stay orders.

p. 4

Legal principles established

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  • To succeed in civil contempt, the applicant must prove the terms of the order, the respondent's knowledge of them, breach, and that the breach was deliberate
  • Contempt proceedings cannot be pursued in respect of an order whose execution has been lawfully stayed
  • Where a stay is granted pending appeal, the successful party cannot enforce the judgment until the appeal is heard

Court orders

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  1. 1.The Notice of Motion dated 10th June, 2024 is dismissed
  2. 2.Costs of the application awarded to the Appellant/Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority

Wrote the judgment

On appeal from
Magistrates' Court (ELC)
Makindu ELC Case No. 10 of 2011
Jurisdiction invoked
Order 40 Rule 3(1) of the Civil Procedure Rules, 2010

Relief refused

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Committal of the Appellant/Respondent to civil jail for up to six months for contempt of court

The Applicant failed to demonstrate breach or wilful disobedience; the lower court judgment had been stayed by the court, so the decree was not enforceable

p. 4

Warrants of arrest against the Appellant/Respondent and authorization for the OCS Kibwezi Police Station to arrest

The contempt application was dismissed as devoid of merit

p. 4

Costs

Application dismissed with costs to the Appellant/Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the Applicant has failed to demonstrate breach or wilful disobedience of the judgment of the lower court by the Appellant. The instant application is devoid of merit and ought to be dismissed with costs.
p. 4Disposition - dismissal of contempt application
It would be illogical for this court to pursue execution of an order which already been stayed and it stands to reason that the Respondent cannot be found to have breached orders which have lawfully been stayed
p. 3Contempt cannot lie against a lawfully stayed order
in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order
p. 3Elements of civil contempt

Issues in the judgment

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minor

Conflicting dates for the grant of stay of execution by this court

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, "Mutie v Galgalo (Environment and Land Appeal E001 of 2022) [2025] KEELC 3802 (KLR)", Case Analysis (2025). Notice of Motion dated 10th June, 2024 (arising from appeal against Makindu ELC Case No. 10 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3802/eng@2025-05-15

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