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ELCPartially AllowedELC Civil Suit No. E162 of 2023

Chemutai & another v Kahuthu (Environment and Land Case Civil Suit E162 of 2023) [2026] KEELC 3268 (KLR)

Environment and Land Court
22 May 2026
3,932 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court by Notice of Motion dated 2nd December 2025 seeking citation of the 1st and 2nd Plaintiffs for contempt, committal to civil jail or a fine, nullification of a ruling of the Chief Land Registrar dated 26th August 2025 cancelling his Certificate of Lease over Land Parcel No. Nairobi Block 196/759, an injunction against implementing that ruling, and reinstatement of his title. He alleged the administrative proceedings breached a subsisting status quo order of 16th February 2024 and were conducted without notice to him. The Plaintiffs opposed through a preliminary objection and grounds of opposition, arguing lack of jurisdiction (reliance on the unconstitutional Contempt of Court Act and the wrong form of application), non-joinder of the Chief Land Registrar, failure to prove the elements of contempt, and that the reliefs sought were substantive matters for judicial review or appeal. The court framed three issues. It dismissed the preliminary objection, holding that contempt jurisdiction survives under Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act, and that the procedural defect was curable under Article 159(2)(d). On contempt, it found the order clear and known, but wilful disobedience by the Respondents not proved to the quasi-criminal standard, the acts being attributed to a non-party advocate and the Registrar. The nullification prayer failed because the Registrar is not a party and her statutory decision is reviewable only through judicial review, appeal, or constitutional petition. The application was dismissed, but in its inherent jurisdiction the court kept the status quo order in force and stayed implementation of the Registrar's decision pending the suit, with costs to abide the outcome. Ruling delivered on 22nd May 2026 by T. Murigi 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 merited
  2. 2.Whether the 1st and 2nd Plaintiffs are in contempt of court
  3. 3.Whether the orders dated 26th August 2025 should be nullified

Key legal issues

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01

Whether the Court had jurisdiction to hear the contempt application despite reliance on the unconstitutional Contempt of Court Act and a procedural defect

Holding

The Court had jurisdiction. Contempt powers rest independently on Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act, and the procedural defect of using a Notice of Motion was curable under Article 159(2)(d).

Reasoning

The Court held jurisdiction derives from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. Punishment for contempt is anchored in Section 5 of the Judicature Act and Section 29 of the ELC Act, so invalidation of the Contempt of Court Act did not oust jurisdiction. Citing an invalid statute does not by itself doom an application where substance is independently established. The Notice of Motion rather than Application Notice defect was curable since the grounds were disclosed in the affidavit and no prejudice resulted. The preliminary objection was therefore dismissed.

p. 6
02

Whether the 1st and 2nd Plaintiffs were in contempt of the status quo order of 16th February 2024

Holding

Contempt was not proved. Although the order was clear and the Respondents knew of it, wilful and deliberate disobedience by the Respondents was not established to the quasi-criminal standard.

Reasoning

The Court set out the four elements from Samuel M.N. Mweru v National Land Commission: clear and unambiguous order, knowledge, breach, and deliberateness. The order of 16th February 2024 was clear and was issued in the presence of counsel for both sides, so knowledge was assumed. However, contempt is quasi-criminal and the Applicant bore the burden of proving wilful and deliberate disobedience to a standard higher than balance of probabilities. The administrative proceedings were attributed to the Plaintiffs' advocate, who was not a party and not explicitly bound by the order, so the elements failed.

p. 7
03

Whether the ruling of the Chief Land Registrar dated 26th August 2025 could be declared null and void in these proceedings

Holding

No. The Registrar is not a party; adverse orders cannot issue against a non-party, and her statutory decision under Sections 14, 79 and 80 of the Land Registration Act can only be challenged by judicial review, appeal, or constitutional petition.

Reasoning

The Court affirmed the principle, drawn from Pashito Holdings, that no finding may be made against a person who has not participated in proceedings. Nullifying the Registrar's decision would violate natural justice. The Registrar acted within her statutory powers, and the proper remedies are judicial review, an appeal, or a constitutional petition, not an interlocutory application in a civil suit. The prayer to reinstate the Applicant's title was a final substantive relief improperly sought at the interlocutory stage.

p. 8

Legal principles established

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  • Reliance on a repealed or unconstitutional statute does not render an application incurably defective where the substantive jurisdiction is independently established
  • The declaration of the Contempt of Court Act as unconstitutional does not deprive courts of jurisdiction to punish for contempt, which survives under Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act
  • A procedural irregularity in the form of a contempt application (Notice of Motion rather than Application Notice) is curable under Article 159(2)(d) where the grounds are disclosed and no prejudice is occasioned
  • A court cannot issue adverse orders against a person or institution that is not a party and has not been given an opportunity to be heard
  • An order maintaining 'status quo' with the phrase 'or any action' extends to any step altering the registered position of the suit property, engaging the doctrine of lis pendens

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The application dated 2nd December 2025 is dismissed
  3. 3.The status quo orders of 16th February 2024 shall remain in force
  4. 4.The implementation of the decision of the Land Registrar dated 26th August 2025 is stayed pending the hearing and determination of the suit
  5. 5.Costs shall abide with the outcome of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; contempt jurisdiction under Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act

Relief refused

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Citation of and committal of the 1st and 2nd Plaintiffs to civil jail and/or fine for contempt of court

Elements of civil contempt, including wilful and deliberate disobedience, were not proved to the required standard; the acts complained of were attributed to the Plaintiffs' advocate and the Chief Land Registrar, neither of whom is a party bound by the order

p. 7

Declaration that the ruling of the Chief Land Registrar dated 26th August 2025 is null and void

The Chief Land Registrar is not a party to the proceedings and has not been heard; adverse orders cannot issue against a non-party, and the decision can only be challenged through judicial review, an appeal, or a constitutional petition

p. 8

Reinstatement of the Applicant's Certificate of Lease for Land Parcel No. Nairobi Block 196/759

A substantive/final relief that cannot be granted at the interlocutory stage

p. 8

Costs

Costs shall abide with the outcome of the suit.

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 status quo orders of 16th February 2024shall remain in force.
p. 8Final orders - continuation of status quo
The implementation of the decision of the Land Registrar dated 26th August 2025 is hereby stayed pending the hearing and determination of this suit.
p. 8Final orders - stay of the Registrar's decision
Costs shall abide with the outcome of the suit.
p. 8Final orders - costs
Reliance on a repealed or unconstitutional statute does not, by itself, render an application incurably defective where the substantive jurisdiction is independently established: it is the substance of the application, not the citation of an invalid statute, that governs.
p. 5Effect of citing an unconstitutional statute on jurisdiction
In light of the foregoing, I find that the application dated 2nd December 2025 lacks merit and is hereby dismissed.
p. 8Dismissal of the contempt application

Issues in the judgment

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minor

Internal date inconsistency in the judgment's own record: the Grounds of Opposition are described as 'dated 5th February 2025' while the application they oppose is dated 2nd December 2025, and the Applicant had not filed submissions 'as directed' - dates within the judgment do not align chronologically.

minor

Typographical error in the final orders - missing space in '2024shall'.

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, "Chemutai & another v Kahuthu (Environment and Land Case Civil Suit E162 of 2023) [2026] KEELC 3268 (KLR)", Case Analysis (2026). ELC Civil Suit No. E162 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3268/eng@2026-05-22

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