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ELCDismissedNotice of Motion dated 12th March 2025 (in the main suit; suit number not stated in judgment)

St. Pauls Theological College, Kapsabet & another v John Keen Kiplagat Songok, Noah Kipkoech Lagat, Samson Kiptanui & Shadrack Kimurgor (As the Administrators of the Estate of the Late Clementina Chebet Songok - Deceased) & 4 others (Environment and Land Case E003 of 2023) [2025] KEELC 7471 (KLR)

Environment and Land Court
29 October 2025
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's bid to jail neighbours for ignoring a court order failed because her photo evidence lacked the certificate Kenyan law requires.

What this practically means

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Executive summary

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By a Notice of Motion dated 12th March 2025, the 1st defendant, through the affidavit of its principal Elizabeth Jepkoech Cheruiyot, sought committal of the plaintiffs to civil jail for disobeying interim orders issued on 21st May 2024, confirmed by a ruling dated 29th January 2025 and delivered on 27th February 2025 restraining trespass on the suit property. The 1st defendant alleged the plaintiffs had the property ploughed and planted in disregard of the status quo orders. The plaintiffs opposed the application through a replying affidavit sworn 15th May 2025, contending that the application was vexatious, that no specific acts of contempt were attributed to them, that the photographs relied on did not depict the suit parcel, and that contempt being quasi-criminal required proof which was lacking. They also filed a preliminary objection dated 15th May 2025 asserting that the application offended sections 106A and 106B of the Evidence Act. The court framed two issues: whether the preliminary objection was sustainable and whether the application had merit. Relying on Mukisa Biscuit and Oraro v Mbaja, the court held that admissibility of electronic evidence is a pure point of law, and that electronic evidence requires a certificate under section 106B. Concluding that the allegations did not meet the threshold on proof of contempt, the court upheld the preliminary objection and dismissed the application dated 12th March 2025 with costs in the cause. Judgment was delivered at Kapsabet on 29th October 2025 by G M A Ongondo, J.

Questions the Court framed

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

  1. 1.Whether the preliminary objection is sustainable
  2. 2.Subject to issue (a) above, is there merit in the application?
  3. 3.For the ends of justice, the orders that the court can issue

Key legal issues

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01

Whether the preliminary objection based on sections 106A and 106B of the Evidence Act was sustainable

Holding

The preliminary objection was upheld; admissibility of photographs/electronic evidence is a pure point of law

Reasoning

The court held that admissibility of photographs or electronic records under sections 106A and 106B is primarily a point of law involving interpretation and application of legal provisions, relevance and authenticity, not a contested factual matter. Drawing on Mukisa Biscuit and Oraro v Mbaja, the objection was sustainable and was upheld.

p. 3
02

Whether the respondents were in contempt of the orders of 29th January 2025/27th February 2025

Holding

The contempt application failed; the applicant did not prove contempt to the required threshold, and the photographic evidence was inadmissible for want of a certificate

Reasoning

Contempt is quasi-criminal and must be proved; the photographs relied upon (EJC-3(a-d)) were unaccompanied by a certificate as required by section 106B, and the respondents denied they depicted the suit parcel. Allegations did not meet the threshold in the cited authorities on proof of contempt, so the application lacked merit.

p. 4

Legal principles established

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  • A preliminary objection must be on pure points of law and not on facts to be ascertained at trial
  • There is an unqualified obligation to obey court orders unless and until discharged
  • Production of electronic or digital evidence must be accompanied by a certificate

Court orders

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  1. 1.The preliminary objection is sustained and is upheld
  2. 2.The application dated 12th March 2025 is dismissed with costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction over contempt of court orders issued in a pending land suit (orders of 21st May 2024, ruling dated 29th January 2025 delivered 27th February 2025)

Relief refused

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Notice to show cause and committal of the Plaintiffs/Respondents to civil jail for contempt of orders issued 29th January 2025 and read on 27th February 2025

The allegations did not meet the threshold of proof of contempt, particularly regarding admissibility of the photographic evidence under sections 106A and 106B of the Evidence Act

p. 4

Order that the Respondents purge the contempt, stop dealing in the suit property and allow the Applicant possession and peaceful occupation

The application was dismissed upon upholding the preliminary objection

p. 4

Costs

dismissed with costs in the cause

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.

It is trite law that a preliminary objection must be on pure points of law and not on any fact that has to be ascertained at the trial of the suit
p. 3Preliminary objections - pure points of law
Admissibility of photograph or electronic evidence or record under section 106A and B (supra) is primarily a point of law in view of the rules governing the same.
p. 3Admissibility of electronic evidence as a point of law
there is an unqualified obligation upon every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it is discharged.
p. 4Obligation to obey court orders
To that end, the preliminary objection is sustainable and the same be and is hereby upheld.
p. 4Disposition - preliminary objection upheld
Accordingly, the application dated 12th March 2025 is hereby dismissed with costs in the cause.
p. 4Final orders - application dismissed

Issues in the judgment

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minor

The court's reasoning conflates the admissibility of electronic evidence with the substantive proof of contempt, without expressly stating the standard of proof applicable; the judgment also alternates between the respondents' standard of proof assertion being unaddressed and a merits dismissal

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, "St. Pauls Theological College, Kapsabet & another v John Keen Kiplagat Songok, Noah Kipkoech Lagat, Samson Kiptanui & Shadrack Kimurgor (As the Administrators of the Estate of the Late Clementina Chebet Songok - Deceased) & 4 others (Environment and Land Case E003 of 2023) [2025] KEELC 7471 (KLR)", Case Analysis (2025). Notice of Motion dated 12th March 2025 (in the main suit; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7471/eng@2025-10-29

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