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ELCPartially AllowedNot stated in judgment· [2013] KEELC 93 (KLR)

Kipturgo Amdany v Johana Sirma Cheburet [2013] KEELC 93 (KLR)

Environment and Land Court
2 August 2013
MSMunyao Sila
998 words in judgment
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The bottom line

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A Kenyan landowner who ignored a court injunction and kept building was found in contempt, and the court ordered his arrest.

What this practically means

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Executive summary

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The plaintiff, registered owner of Kapkoiwo Plot No. 2071, sued the defendant for forcibly entering the land in March 2013 and sought a permanent injunction. On 27 May 2013 the court granted interim injunction orders pending inter-partes hearing of an application dated 22 May 2013, formal orders issuing on 28 May 2013. The injunction was later allowed on 9 July 2013 after the defendant, though served, filed no response. The plaintiff then filed a Motion dated 16 July 2013 under Section 29 of the Environment and Land Court Act seeking the defendant's committal to jail for two years for disobeying the 28 May 2013 order, and denial of audience until he purged the contempt. In support, the plaintiff deponed that the defendant was served on 30 May 2013 but entered the land on 16 June and 22 June 2013, weeding crops and preparing a foundation for construction, telling the plaintiff he did not care about court papers. The affidavits of Samuel Chumel and the area Chief, Isaac Kimosop Tobole, corroborated that the defendant was found on the land with workers preparing a foundation. The defendant filed no response and did not appear. The court found him in contempt, stressing that court orders must be respected for the rule of law to prevail. Invoking Section 28 of the Act, which prescribes a fine of up to twenty million shillings or imprisonment of up to two years, the court issued a warrant of arrest directing the OCPD Baringo to arrest the defendant and bring him before the court for punishment to be meted in his presence.

Key legal issues

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01

Contempt of court for disobeying an interlocutory injunction order

Holding

The defendant, though served with the order of 28 May 2013, disobeyed it by continuing to work on and prepare the suit land for construction, and was found in contempt

Reasoning

The plaintiff deponed that the defendant was served on 30 May 2013 but continued ploughing, weeding and preparing a foundation on the land. The Chief of Kipkata Location and Samuel Chumel corroborated seeing the defendant on the land with workers. The defendant filed no response and did not appear; the affidavits were therefore uncontroverted and the court found contempt established under Section 28 of the Environment and Land Court Act.

p. 2
02

The court's obligation to enforce obedience of its orders

Holding

The court must insist on obedience to its orders to prevent anarchy and uphold the rule of law

Reasoning

The court emphasised that selective obedience of court orders would breed anarchy and that a culture of disobedience must be stopped. It is on this basis that it moved to punish the contemnor rather than allow defiance to stand.

p. 2

Legal principles established

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  • Court orders must be obeyed by all; the court must enforce its orders to uphold the rule of law

Court orders

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  1. 1.A warrant of arrest of the defendant issued, to be served on the OCPD Baringo, who to arrest the defendant and present him before the court for appropriate punishment

Authorities

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Legislation

  • Environment and Land Court ActSection 29
  • Environment and Land Court ActSection 28
Jurisdiction invoked
Section 29 of the Environment and Land Court Act, Act No. 19 of 2011

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, "Kipturgo Amdany v Johana Sirma Cheburet [2013] KEELC 93 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/93/eng@2013-08-02

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