Chemutai & another v Kahuthu (Environment and Land Case Civil Suit E162 of 2023) [2026] KEELC 3268 (KLR)
The bottom line
#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 preliminary objection is merited
- 2.Whether the 1st and 2nd Plaintiffs are in contempt of court
- 3.Whether the orders dated 26th August 2025 should be nullified
Key legal issues
#Whether the Court had jurisdiction to hear the contempt application despite reliance on the unconstitutional Contempt of Court Act and a procedural defect
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).
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.
Whether the 1st and 2nd Plaintiffs were in contempt of the status quo order of 16th February 2024
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.
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.
Whether the ruling of the Chief Land Registrar dated 26th August 2025 could be declared null and void in these proceedings
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.
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.
Legal principles established
#- 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
#- 1.The preliminary objection is dismissed
- 2.The application dated 2nd December 2025 is dismissed
- 3.The status quo orders of 16th February 2024 shall remain in force
- 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.Costs shall abide with the outcome of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
Costs
Costs shall abide with the outcome of the suit.
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.
The status quo orders of 16th February 2024shall remain in force.
The implementation of the decision of the Land Registrar dated 26th August 2025 is hereby stayed pending the hearing and determination of this suit.
Costs shall abide with the outcome of the suit.
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.
In light of the foregoing, I find that the application dated 2nd December 2025 lacks merit and is hereby dismissed.
Issues in the judgment
#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.
Typographical error in the final orders - missing space in '2024shall'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.