Geofrey K. Ng'ang'a v Sammy Warui & 3 others [2014] KEELC 169 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave is needed to bring contempt proceedings under Section 63(c)/Order 40 Rule 3
Leave is not required; the authority requiring leave was distinguishable and current contempt procedure removes the leave requirement
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.
Whether the injunction lapsed under Order 40 Rule 6 and could be violated
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
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.
Whether the order of 27 July 2012 was violated and by whom
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
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.
Legal principles established
#- 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
#- 1.Application succeeds against the 2nd respondent with costs
- 2.The money the 2nd respondent received from Ruth Njeri must be returned forthwith to her, the sale agreement being null and void
- 3.The 2nd respondent is liable to be punished by the court, and will be punished after being given a chance to mitigate
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.