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ELCPartially AllowedELC Case (plaint filed 4 October 2010) – Notice of Motion dated 28 November 2013· [2014] KEELC 169 (KLR)

Geofrey K. Ng'ang'a v Sammy Warui & 3 others [2014] KEELC 169 (KLR)

Environment and Land Court
8 October 2014
3,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court held a land agent in contempt for selling plots despite an injunction, and buyers of tainted land must be refunded.

What this practically means

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Executive summary

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The plaintiff sought contempt orders by a notice of motion dated 28 November 2013 under Section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1), asking that the 2nd to 4th defendants show cause why they should not be committed to civil jail for continuing to sell portions of L.R Nos. 779/504 and 779/507 in breach of an interlocutory injunction issued by Mshila J on 27 July 2012, and that collected sale monies be remitted to him. The suit arose from an agency agreement whereby the defendants, holding themselves out as surveyors, were to subdivide and sell plots and allegedly received Kshs 15,847,100 without accounting for it. The application was opposed on three grounds: no proof of service, lapse of the injunction after one year under Order 40 Rule 6, and want of leave to bring contempt proceedings. The court held that no leave is required under Section 63(c)/Order 40 Rule 3, distinguishing Re Estate of Emilia Muchora and applying Africa Management and Christine Wangari Gachege. Service was proved by an affidavit of service sworn 3 August 2012. The alleged violation occurred within a year of the order, and in any event a party who considers an injunction lapsed must seek its discharge rather than violate it. On the evidence, the 2nd defendant sold plot 63A to Ruth Njeri for Kshs 650,000 on 12 July 2013 and issued a backdated receipt, a clear breach; the case against the other respondents failed as suspicion is not evidence. The application succeeded against the 2nd respondent with costs; he must refund the money to Ruth Njeri and is to be punished after mitigation.

Key legal issues

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01

Whether leave is needed to bring contempt proceedings under Section 63(c)/Order 40 Rule 3

Holding

Leave is not required; the authority requiring leave was distinguishable and current contempt procedure removes the leave requirement

Reasoning

The court distinguished Re Estate of Emilia Muchora because the applicant there did not rely on Section 63(c) or Order 40 Rule 3. It applied Africa Management Communication International Ltd v Joseph Mathenge Mugo and the Court of Appeal decision in Christine Wangari Gachege, which held the current contempt procedure has removed the requirement for leave.

p. 5
02

Whether the injunction lapsed under Order 40 Rule 6 and could be violated

Holding

The alleged violation (12 July 2013) occurred within one year of the order (27 July 2012), so Rule 6 was inapplicable; and in any event lapse must be judicially declared, not self-helped

Reasoning

The court held Rule 6 aims at ensuring injunctions do not persist indefinitely and suits conclude expeditiously. Given case backlog, parties should seek the court's direction on whether an order subsists or has lapsed before violating it. Orders of injunction preserve the subject matter; violating a lapsed order on one's own calculation is a cat-and-mouse approach to be deprecated.

p. 6
03

Whether the order of 27 July 2012 was violated and by whom

Holding

Violated by the 2nd respondent, who sold plot 63A to Ruth Njeri for Kshs 650,000 and backdated a receipt; not established against the others

Reasoning

Ruth Njeri's affidavit detailed the sale, payment and backdated receipt, none of which was denied by the 2nd respondent. The sale was not subject of the criminal charges against former employees. Only the 2nd respondent entered the agreement, received payment and issued the receipt; involvement of the 3rd and 4th respondents rested on suspicion only.

p. 6

Legal principles established

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  • No leave is required to institute contempt proceedings under Section 63(c) of the Civil Procedure Act or Order 40 Rule 3
  • A party who believes an injunction has lapsed under Order 40 Rule 6 must apply for its discharge rather than violate it; lapse is not licence for breach
  • Suspicion without evidential backup cannot sustain a finding of contempt

Court orders

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  1. 1.Application succeeds against the 2nd respondent with costs
  2. 2.The money the 2nd respondent received from Ruth Njeri must be returned forthwith to her, the sale agreement being null and void
  3. 3.The 2nd respondent is liable to be punished by the court, and will be punished after being given a chance to mitigate

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 63(c)
  • Civil Procedure Rules, 2010Order 40 Rule 3(1)
  • Civil Procedure Rules, 2010Order 40 Rule 6
  • Civil Procedure Rules, 2010Order 40 Rule 7

Cases cited (3)

  • Re Estate of Emilia Muchora (Deceased)
    (2013) eKLR
  • Africa Management Communication International Limited v Joseph Mathenge Mugo & Another
    (2013) eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    Civil Application No. 233 of 2007 (2014) eKLR
Jurisdiction invoked
Section 63(c) of the Civil Procedure Act, Cap 21 and Order 40 Rule 3(1) of the Civil Procedure Rules, 2010

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, "Geofrey K. Ng'ang'a v Sammy Warui & 3 others [2014] KEELC 169 (KLR)", Case Analysis (2014). ELC Case (plaint filed 4 October 2010) – Notice of Motion dated 28 November 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/169/eng@2014-10-08

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