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ELCPartially AllowedMigori ELC No. 56 of 2017 (recorded in the judgment as 'Migori ELC NO. 56 of 2027')

Wayuga v Church Commissioners for the Anglican Church of Kenya & another; Sapit Primate and Archbishop of All Kenya & 2 others (Interested Parties) (Environment and Land Case 56 of 2017) [2026] KEELC 400 (KLR)

Environment and Land Court
27 January 2026
4,986 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Migori found the Anglican Church's commissioners in contempt for refusing to vacate land, giving them seven days to leave or face punishment.

What this practically means

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Executive summary

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The Applicant, legal representative of the late Samwel Orwa Wayuga, moved the court by Notice of Motion dated 27th June 2025 seeking a declaration that the Defendant/Respondent (the Church Commissioners for Kenya, Anglican Church of Kenya) and named interested parties are in contempt of orders issued on 23rd June 2016 by Okong'o J, reiterated on 29th June 2017 and upheld by the Court of Appeal in Kisumu on 16th August 2024, together with committal to civil jail and an order to vacate parcel No. 3699 Kasgunga/Kamreri Adjudication Section. The Respondent, through its CEO's replying affidavit, contended that the parcel no longer exists following finalization of adjudication in 2008, that the parties litigated over public land, and that contempt could not lie absent extraction of a certificate of costs. The court first held that the alleged Interested Parties were never properly joined and could only be proceeded against as holders of the church's offices. Applying the test in Samuel M.N. Mweru and the standard above balance of probabilities, the court found the order clear, known to the defendant, and breached. It rejected the 'non-existent land' and 'public land' arguments as indirect relitigation before a functus officio court, held the certificate-of-costs argument irrelevant because the application concerns obedience rather than execution, and found willful disobedience. The application succeeded in terms of prayer 4 only: the defendant, as a party, was convicted of contempt; its responsible officers were directed to attend court on 10th February 2026 to show cause why they should not be punished; the defendant was ordered to vacate within seven days; and costs were awarded to the Applicant. The court also noted that the Contempt of Court Act, 2016 was unconstitutional and inapplicable.

Questions the Court framed

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

  1. 1.Whether the defendant/Respondent and its officials are in contempt of court
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether the defendant/Respondent is in contempt of the orders to vacate the suit property

Holding

Yes - the defendant willfully disobeyed the orders and continues to do so; the court convicted the defendant of contempt as a party

Reasoning

The trial court's judgment of 23rd June 2016, upheld by the Court of Appeal on 16th August 2024, ordered the defendant to vacate parcel No. 3699 Kasgunga/Kamreri. The defendant does not deny knowledge of the order. Its defence that the parcel 'does not exist' after finalization of adjudication was rejected: the order relates to the specific piece of land on which the church still stands, and the defendant has never sought review, allocation from the National Land Commission, or vacation of the land. The certificate-of-costs argument was held irrelevant since the application concerns obedience, not execution. All elements of contempt were established to the applicable standard.

p. 9
02

Whether the Interested Parties can be held in contempt and committed

Holding

No - they were not properly joined and cannot be punished in their personal capacity, though the court convicted the officials in their representative capacity and ordered them to show cause

Reasoning

The persons named were not parties to the suit before judgment and no joinder order was made; there is no live suit to which they could be joined post-judgment. Offices in an organization persist even as officeholders change, so contempt findings attach to the holders of the offices responsible for the church's functions. Accordingly the court only directed those officeholders to appear and show cause why they should not be punished.

p. 5
03

The effect of the defendant's claim that the suit property no longer exists in land records

Holding

Rejected - the parties litigated over a specific, identified parcel of land on which the church still stands; the defendant cannot relitigate its existence indirectly

Reasoning

The court reasoned that the parties litigated over a specific piece of earth on which the church was built and still stands. If the land 'does not exist', the defendant has not vacated it; if it is public land, the defendant is not a public entity and never sought allocation from the National Land Commission. The judgments over parcel No. 3699 have never been set aside or reviewed, remain binding, and this court is functus officio; the defendant's arguments amount to indirect relitigation and defiance.

p. 8

Legal principles established

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  • To succeed in civil contempt proceedings, an applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply; willfulness and bad faith are then inferred unless rebutted
  • The standard of proof in civil contempt is higher than the balance of probabilities but below proof beyond reasonable doubt
  • Court orders must be obeyed; a party facing difficulty in complying must return to court for directions rather than elect which orders to obey

Court orders

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  1. 1.A determination that the defendant/Respondent only, as a party, is in contempt of court
  2. 2.That the officers of the church responsible for its relocation from the suit land and the running of its services (the Primate and Archbishop of All Kenya, the Provincial Secretary of the Anglican Church of Kenya, and the CEO of the Church Commissioners for Kenya) attend court in person on 10th February 2026 to show cause why they should not be punished
  3. 3.The Defendant/Respondent is ordered to vacate the suit premises forthwith but not more than seven (7) days, failing which the court will consider meting out a sentence
  4. 4.Costs of the application awarded to the Applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Sections 1A and 1B of the Civil Procedure Act; Order 51 of the Civil Procedure Rules, 2010

Relief refused

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Committal of the Interested Parties to civil jail / finding the Interested Parties in contempt in their personal capacity

The alleged Interested Parties were never properly joined as parties to the suit; no order of joinder was made and the suit had concluded, so they cannot be found or punished as individuals but only as holders of offices responsible for the church's functions

p. 5

Immediate committal to civil jail on the application as prayed

The court instead ordered the officials to attend court on 10th February 2026 to show cause why they should not be punished, and allowed the defendant seven days to vacate as a sign of good faith

p. 9

Reliance on Sections 3, 4(1) and 29 of the Contempt of Court Act, 2016

The Contempt of Court Act, 2016 was declared unconstitutional in Kenya Human Rights Commission v Attorney General & Another and its provisions are inapplicable

p. 5

Costs

Costs of the application awarded to the Applicant

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.

Further, I now direct that the oficers of the church who are responsible for its relocation from the suit land, and the running of the services and functions, that is to say, the Primate and Archbishop of all Kenya, the Provincial Secretary, the Anglican Church of Kenya, and the CEO, The Church Commissionners for Kenya are all ordered to attend court in person on 10th February 2026 to show cause why they should not be punished accordingly.
p. 9Final orders - show cause direction to church officials
The Defendant/Respondent is hereby ordered to vacate the suit premises forthwith but not more than seven (7) days, and if they do so as a sign of good faith the consider will consider meting out a lenient sentence.
p. 9Final orders - seven-day vacate direction
The upshot of the foregoing is that, the Applicant's application dated 27th June 2025 succeeds in terms of prayer 4 of the same, to the efiect that the defendant/Respondent only as a party is in contempt of court. I convict the oficials of the said church accordingly.
p. 9Disposition - conviction for contempt limited to the defendant as a party
In the same breadth, the court finds that the defendant /Respondent was bound to obey the order of the court, irrespective of whether or not the land in question exists in the land records or not.
p. 7Obligation to obey orders despite claims of non-existence of the property
This court respectfully finds that the instant application does not relate to execution; rather, it relates the obedience of the orders of the court mandating the defendant/Respondent to vacate the suit property. As such, the issue of certificate of costs does not arise.
p. 7Certificate of costs irrelevant to contempt proceedings
Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not
p. 6Mandatory obedience of court orders (Shimmers Plaza, cited by the court)
the Respondents are indirectly relitigating over a subject matter which this court is now functus oficio
p. 8Functus officio and relitigation

Issues in the judgment

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material

Case number internally inconsistent - suit stated as instituted in 2004 and transferred to Migori, yet numbered as if filed in 2027

minor

Conflicting dates for the same proceedings - prayer 5 cites orders of 23rd June 2016 'reiterated by the same court in its ruling of the 29th June 2017', the supporting affidavit annexes a 'ruling dated 27th June 2017', and submissions refer to 'the judgment of the court dated 27th June 2016'

minor

Order that 'I convict the oficials of the said church accordingly' sits uneasily with the express holding that the Interested Parties cannot be found and punished individually, and no sentence was imposed at this stage

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, "Wayuga v Church Commissioners for the Anglican Church of Kenya & another; Sapit Primate and Archbishop of All Kenya & 2 others (Interested Parties) (Environment and Land Case 56 of 2017) [2026] KEELC 400 (KLR)", Case Analysis (2026). Migori ELC No. 56 of 2017 (recorded in the judgment as 'Migori ELC NO. 56 of 2027'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/400/eng@2026-01-27

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