Jacob v M’Nchebere & 4 others (Environment and Land Appeal E010 of 2023) [2025] KEELC 6036 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a magistrate's ruling rejecting a contempt claim, ordering both linked applications be heard together afresh.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Lower Court exercised its discretionary jurisdiction properly in declining to issue contempt orders sought by the appellant
Key legal issues
#Whether the Lower Court properly exercised its discretion in dismissing the contempt application
The Lower Court misdirected itself on the correct factual position, proceeding on the premise that the ex-parte judgment had been set aside when no such order existed.
The appellate court examined the typed, certified and original handwritten proceedings of the Lower Court and found no order setting aside the ex-parte judgment of 21st January 2021, and no disposal of the respondents' application dated 16th March 2021. The Lower Court nonetheless disposed the contempt application on the assumption that the judgment had been set aside and the suit awaited full hearing. That factual misdirection vitiated the exercise of discretion.
Procedural propriety of disposing the contempt application separately from the respondents' setting-aside application
The Lower Court erred in failing to hear and determine the two intertwined applications together.
The record showed two applications before the Lower Court: the contempt application dated 19th February 2021 and the respondents' application dated 16th March 2021 seeking to set aside the ex-parte judgment. The status of the ex-parte judgment was central to both. A proper exercise of jurisdiction required disposing of both contemporaneously, which the Lower Court failed to do.
Standard of proof in contempt proceedings
Contempt is quasi-criminal; proof must be stricter than balance of probabilities though not necessarily beyond reasonable doubt, as the Lower Court correctly stated.
The court adopted Gatharia K. Mutikika v Baharini Farm Ltd, holding that contempt is an offence of criminal character attracting severe sanctions, requiring proof with strictness consistent with the gravity of the charge. However, this standard was not the basis of the decision; the appeal succeeded on the Lower Court's factual misdirection and procedural error, not on its statement of the contempt standard.
Legal principles established
#- On a first appeal, the court must re-evaluate the whole evidence on record and arrive at its own independent conclusions.
- Contempt of court is quasi-criminal in character and guilt must be proved with strictness consistent with the gravity of the charge, higher than a balance of probabilities but not exactly beyond reasonable doubt.
- A court seized of related and intertwined applications ought to hear and dispose of them contemporaneously.
Court orders
#- 1.The impugned ruling of the Lower Court dated 27th July 2023 is set aside
- 2.The Lower Court is directed to hear afresh the appellant's application dated 19th February 2021 contemporaneously with the respondents' application dated 16th March 2021
- 3.Parties to bear their respective costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Maua Chief Magistrate Court (Environment and Land)
- Maua CMC E & L Case No. 57 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of the Chief Magistrate's Court (Environment and Land) - the memorandum of appeal dated 3rd August 2023
Relief refused
#Costs of the appeal to the appellant
The error giving rise to the appeal was committed by the Lower Court itself
Costs
Parties to bear their respective costs of the appeal (each party bearing their own costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The impugned ruling of the Lower Court is hereby set aside and the Lower Court is directed to hear a fresh the appellant’s application dated 19th February, 2021 contemporaneously with the respondents’ application dated 16th March, 2021.
In view of the fact that the error giving rise to this appeal was committed by the Lower Court itself, parties will bear their respective costs of the appeal.
There is no order setting aside the ex-parte judgment of the Lower Court. Similarly, there is no order disposing the respondent’s application dated 16th March, 2021, in which they sought an order setting aside the ex-parte judgment.
It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged.
Recourse ought not to be heard to the process of contempt of court in aid of a civil remedy where there is any other method of doing justice.
Issues in the judgment
#The judgment does not state the number of the appeal itself; only the Lower Court case number (Maua CMC E & L Case No. 57 of 2020) and the memorandum of appeal dated 3rd August 2023 are given, and the respondents are never named in the judgment.
The Lower Court's ruling is quoted inconsistently within the judgment itself - first as 'Application is dismissed no orders as to costs' and later as 'Application is dismissed with no orders as to costs'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob v M’Nchebere & 4 others (Environment and Land Appeal E010 of 2023) [2025] KEELC 6036 (KLR)", Case Analysis (2025). Not stated in the judgment beyond reference to Maua CMC E & L Case No. 57 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6036/eng@2025-09-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.