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ELCDismissed· [2014] KEELC 87 (KLR)

Japhet Noti Charo v Mohamed Ahmed Dahman & another [2014] KEELC 87 (KLR)

Environment and Land Court
21 November 2014
OAO. A. Angote
746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail a landowner for contempt because the applicant couldn't prove the court order was personally served or that construction actually breached it.

What this practically means

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Executive summary

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The Plaintiff in a land dispute over plot M5 Malindi, including portion number 5596, applied by notice of motion dated 28th July 2014 for a warrant of arrest against the 2nd Defendant, Abdalla Salim, to be committed to civil jail for disobedience of a restraining order issued on 24th/25th July 2014, together with ancillary orders compelling the OCS Malindi to ensure compliance and an order for demolition of a perimeter wall allegedly built after service of the injunction. The Plaintiff deponed that the 2nd Defendant was served with the order but employed more men who worked harder and faster, continuing construction. The 2nd Defendant denied service, denied being Abdalla Said Omar Barkar, denied owning any plot in M5 Malindi, and asserted that any construction was on portions 12041 and 12042, not portion 5596. In a brief ruling, the court found no affidavit of service on the file evidencing personal service of the order on the 2nd Defendant; the person allegedly served was Abdalla Said Omar Bakor, unconnected to the 2nd Defendant. The photographs annexed were taken by an unidentified person and did not show whether the construction was on the suit property or another parcel, nor on which parcel the completed building stood. The court held the Plaintiff failed to prove either service or disobedience, and dismissed the application dated 28th July 2014 with costs to the 2nd Defendant.

Key legal issues

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01

Proof of service of the court order as a precondition to committal for contempt

Holding

No affidavit of service was on file showing personal service on the 2nd Defendant; the person allegedly served (Abdalla Said Omar Bakor) was not identified with the 2nd Defendant, who denied knowledge of him.

Reasoning

The court perused the file and found no affidavit of service evidencing personal service of the order on the 2nd Defendant. The person named as served, Abdalla Said Omar Bakor, was not a person the 2nd Defendant acknowledged. Without proof of service, the court could not find disobedience, since committal requires that the party knew of the order.

p. 2
02

Proof of the alleged breach (continued construction on the suit property)

Holding

The photographs annexed did not establish that the construction was on portion number 5596 or that it continued after the order.

Reasoning

The photographs in the supporting affidavit were taken by an unmentioned person and it was unclear whether the construction depicted was on the suit property. The further affidavit's photographs also did not identify the parcel of land on which the completed building stood. The alleged disobedience was therefore not proved, and the contempt application failed.

p. 2

Legal principles established

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  • Before a party can be committed for contempt, service of the order must be proved, and the breach must be proved on evidence; the burden lies on the applicant

Court orders

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  1. 1.The Plaintiff's Application dated 28th July 2014 dismissed with costs to the 2nd Defendant
Jurisdiction invoked
Inherent powers of the court to punish for disobedience of its orders (contempt/civil jail application in the pending land suit); no specific provision invoked in the judgment.

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, "Japhet Noti Charo v Mohamed Ahmed Dahman & another [2014] KEELC 87 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/87/eng@2014-11-21

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