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ELCAllowedNot stated in the judgment (suit commenced by plaint filed 30 August 2013; application dated 14 August 2014)· [2014] KEELC 28 (KLR)

Peter Mwaura Kariuki v Florence Gachambi & another [2014] KEELC 28 (KLR)

Environment and Land Court
5 November 2014
MSMunyao Sila
1,287 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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An Eldoret landowner was fined Kshs. 50,000 for ignoring a court agreement, showing Kenyan courts punish those who disobey orders.

What this practically means

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Executive summary

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The suit concerns land parcel Eldoret Municipality Block 15 (Huruma)/140, which the plaintiff and the 1st defendant, his sister, allegedly bought jointly from the 2nd defendant. After a Land Disputes Tribunal decision in favour of the 1st defendant failed of adoption, she obtained title in her own name, prompting a plaint and an injunction application. On 13 February 2014 the parties recorded a consent maintaining the status quo as at 27 November 2013, allowing the lease to Christian Restoration Fellowship Church to run out by 5 June 2014 after which the tenant would move out, restraining further construction, and leaving the 1st defendant in possession pending trial. By an application dated 14 August 2014 brought under Order 40 of the Civil Procedure Rules and Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act, the plaintiff sought punishment of the 1st defendant for contempt, alleging renewal of the lease after its expiry. The 1st defendant filed no response; counsel did not appear at the inter partes hearing. The court found the breach proved, invoking also Section 28 of the Environment and Land Court Act, and on 5 November 2014 fined the 1st defendant Kshs. 50,000, with three months' imprisonment in default, directed the OCPD Eldoret to enforce compliance and remove any tenant, and ordered a compliance report on 19 November 2014.

Key legal issues

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01

Breach of a consent order

Holding

The 1st defendant was in breach of the consent order of 13 February 2014 by allowing the tenant to remain after the lease expired on 5 June 2014.

Reasoning

The consent maintained the status quo as at 27 November 2013, allowed the lease in annexure F1 to run out by 5 June 2014, required the tenant to move out, and barred further construction. The plaintiff contended the lease was renewed. The 1st defendant filed no response and, despite opportunity, failed to demonstrate that the tenant's continued presence was not in violation. The court believed the plaintiff and found breach established.

p. 2
02

Power to punish for contempt of an injunction

Holding

The court has power under Order 40 and Section 63 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act to punish for disobedience of an injunction, and a fine of Kshs. 50,000 with default imprisonment of 3 months was suitable.

Reasoning

The application was brought under Order 40 and Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act, which empower punishment for disobeying an injunction (up to 6 months imprisonment). Section 28 of the Environment and Land Court Act also confers the power, with a penalty of up to 2 years and/or a fine not exceeding Kshs. 20 Million. The court elected a moderate fine with default custody and compliance orders.

p. 3

Legal principles established

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  • Court orders must be obeyed; disobedience must be sanctioned to sustain the dignity of the court.
  • A party who fails to respond or rebut averments risks the application being allowed on the uncontroverted material.

Court orders

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  1. 1.The 1st defendant shall pay a fine of Kshs. 50,000/=
  2. 2.In default of the fine, the 1st defendant shall be jailed for a period of 3 months
  3. 3.The OCPD, Eldoret to ensure the default imprisonment is effected if the fine is not paid
  4. 4.The 1st defendant should ensure that no tenant remains on the premises from the date of the order
  5. 5.If order 4 is not performed, the OCPD Eldoret Police Station to ensure no 3rd parties make use of the premises
  6. 6.The 1st defendant and the OCPD Eldoret to report on compliance on 19 November 2014

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 40
  • Environment and Land Court ActSection 28
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act; Section 28 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Mwaura Kariuki v Florence Gachambi & another [2014] KEELC 28 (KLR)", Case Analysis (2014). Not stated in the judgment (suit commenced by plaint filed 30 August 2013; application dated 14 August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/28/eng@2014-11-05

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