Khayundi & 2 others v Asembo & 6 others; Khayundi (Interested Party) (Environment and Land Case E010 of 2024) [2025] KEELC 8643 (KLR)
The bottom line
#A Kenyan land court allowed a simple typo fix to a lawsuit but refused to punish anyone for contempt because the court order was vague and unproven.
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 plaintiffs should be granted leave to amend the plaint to correct the description of the suit land
- 2.Whether the plaintiffs (Luke Amboye Khayundi, Naboth Oniang'o and William Olembo Khayundi) are in contempt of the court's status quo order and should be punished
Key legal issues
#Whether leave to amend the plaint should be granted
The application for amendment was allowed; the proposed amendment corrects the description of the suit land from W. Bunyore/Ebwiranyi to West Bunyore/Ebutanyi and assists the court to determine the real question in controversy
The court perused the application, the supporting affidavit and the draft amended plaint. The title deed annexed described the suit land as W/Bunyore/Ebutanyi/577, showing a mistake apparent on record. The amendment was necessary for determining the real question in controversy, and the application was unopposed.
Whether the plaintiffs were in contempt of the status quo order
The contempt application failed: no valid, defined order was proved to have been breached, and the evidence did not establish willful breach by the plaintiffs
The ruling of 15th May 2025 dismissed the plaintiffs' injunction application; the status quo was not defined and the operative order was dismissal. There was no evidence that the plaintiffs created the road or that the photographs were of the suit land. Contempt requires proof to a standard higher than balance of probabilities, and the Contempt of Court Act had been declared unconstitutional.
The validity of the Contempt of Court Act as a foundation for contempt proceedings
The Act under which the defendants brought their application had been declared unconstitutional
The court noted that the Contempt of Court Act No. 46 of 2016, pursuant to Orders 3, 6 and 28 of which the application was brought, was declared unconstitutional in Kenya Human Rights Commission vs Attorney General & another [2018] eKLR, undermining the foundation of the application.
Legal principles established
#- The applicant in contempt proceedings must first prove the existence of a valid, clear and unambiguous court order binding on the respondent
- The standard of proof in contempt of court is higher than proof on a balance of probabilities
Court orders
#- 1.Leave granted to the plaintiffs to amend the plaint
- 2.Draft amended plaint annexed to the application deemed as the amended plaint upon payment of the requisite court fees
- 3.Requisite court fees to be paid and amended plaint served upon the Defendants within 15 days failing which the leave granted shall lapse
- 4.No order as to costs on the application dated 7th July 2025
- 5.The application dated 16th July 2025 dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 8 of the Civil Procedure Act (plaintiffs' application); Orders 3, 6 and 28 of the Contempt of Court Act No. 46 of 2016 (defendants' application)
Relief refused
#Punishment of the plaintiffs for contempt of court (fine of Ksh 200,000 and/or committal to civil jail for six months)
The grounds for contempt were not proved; the status quo order was not defined; no evidence that the plaintiffs created the road or that the photographs depicted the suit land; the degree of proof in contempt is higher than balance of probabilities; and the Contempt of Court Act had been declared unconstitutional
Costs
No order as to costs on both applications
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.
Leave is granted to the plaintifis to amend the plaint.
The application dated 16th July 2025 lacks merit and is hereby dismissed. No order as to costs.
The degree of proof in case of contempt of court is higher than proof on a balance of probabilities.
the applicant must prove the existence of a valid court order in clear and unambiguous terms which are binding upon the respondents.
Issues in the judgment
#The ruling does not state the case number or the names of the parties in the title
The ruling is dated 11th December 2025 but refers to directions taken on 18th September 2025 and a Replying Affidavit sworn on 15th October 2025; also, paragraph numbering in the conclusion lists item 1 against a blank entry
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khayundi & 2 others v Asembo & 6 others; Khayundi (Interested Party) (Environment and Land Case E010 of 2024) [2025] KEELC 8643 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8643/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.