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ELCDismissedNot stated in the judgment

Muinde v Kathyuka (Enviromental and Land Originating Summons E005 of 2021) [2025] KEELC 6055 (KLR)

Environment and Land Court
18 September 2025
EOE. O. Obaga
2,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt claim because a single undated photograph could not prove who cut protected trees, when, or where.

What this practically means

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Executive summary

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The Applicant, Grace Mbele Kathukya, moved the court by Notice of Motion dated 4th October, 2024 seeking to have the Respondent cited for contempt of a status quo order issued by Hon. Lady Justice T. Murigi on 22nd November, 2023 preserving trees on a suit property. She sought a fine of Kshs. 100,000/=, imprisonment and enforcement through the OCS Kithumani Police Station, contending the Respondent had cut down trees in disregard of the order. The Respondent denied cutting the trees, and argued that photographs annexed as Exhibit GMK2 showed neither her nor her agents and were undated. The application was canvassed by written submissions. The court framed the sole issue as whether the Applicant had demonstrated a deliberate breach of the 22nd November, 2023 order. Relying on Section 5 of the Judicature Act, the court adopted the test in Samuel M. N. Mweru & Others v National Land Commission (terms of the order, knowledge, and failure to comply) and the standard of proof in Gatharia K Mutitika v Baharini Farm Limited, which is higher than the balance of probabilities but short of beyond reasonable doubt. The court found that the single undated photograph of tree stumps could not establish who cut the trees, when, or where, and was of no probative value. It held the Applicant had failed to demonstrate breach or wilful disobedience. The application was dismissed with costs on 18th September, 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 Court order dated 22nd November, 2023 in order to cite the Respondent liable for contempt of court
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether contempt was proved to the required standard

Holding

The application was dismissed because the Applicant did not prove the Respondent's deliberate breach of the status quo order

Reasoning

The court applied the three-element test from Samuel M. N. Mweru and the higher-than-balance-of-probabilities standard from Gatharia K Mutitika. The only evidence was an undated photograph of tree stumps that could not show who cut the trees, when or where. Contempt being quasi-criminal, the burden under Section 107 of the Evidence Act lay on the Applicant, and the evidence carried no probative value.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • To succeed in civil contempt the applicant must prove the terms of the order, the respondent's knowledge of the terms, and failure to comply

Court orders

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  1. 1.The instant application is dismissed with costs

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Section 5(1) of the Judicature Act, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rules 1 and 2 of the Civil Procedure Rules

Relief refused

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Citation of the Respondent for contempt of court, fine of Kshs. 100,000/= and imprisonment

The Applicant failed to prove the elements of contempt to the required standard; the sole photograph annexed did not establish that the Respondent cut the trees

p. 5

Costs

The application is dismissed with costs to the 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.

The upshot is that the instant application is devoid of merit and is dismissed with costs.
p. 5Final orders - dismissal of contempt application
It is of no probative value to the ofience which the Applicant claims was committed.
p. 4Evidential value of undated photograph
From the evidence presented before this court, it is uncertain that the Respondent is responsible for the damage caused to the trees in the suit property in violation of the court order dated 22nd November, 2023.
p. 5Failure of proof of contempt

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, "Muinde v Kathyuka (Enviromental and Land Originating Summons E005 of 2021) [2025] KEELC 6055 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6055/eng@2025-09-18

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