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ELCOtherCivil Suit No. 126 of 2011· [2014] KEELC 206 (KLR)

Mhandisi Enterprises Ltd v Mohamed Swalehe Mwajembe & 8 others [2014] KEELC 206 (KLR)

High Court of Kenya
18 September 2014
SMS. Mukunya
672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Three Kenyan landowners were found in contempt for breaching a court-ordered status quo, proving you cannot ignore court orders you helped agree to.

What this practically means

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Executive summary

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This contempt ruling arises out of Civil Suit No. 126 of 2011 (High Court, Mombasa) in which Mhandisi Enterprises Ltd sued nine defendants, including the District Land Registrar (Kwale), the Attorney General and the Kwale District Survey Officer, over Plot No. Kwale/Diani Beach/Block 653. On 8th July 2013, before Justice S. Mukunya, counsel for the parties recorded a consent settling the plaintiff's Notice of Motion. By the consent, the Kwale District Survey Officer was directed to re-establish the boundary and replace missing beacons within 60 days, with security provided by the OCS Diani Police Station; the DCIO Kwale was to produce the two green cards for the plot on 23rd September 2013; and the status quo on the plot was to remain intact, with no further encroachment, cultivation or quarrying, until final disposal of the suit. The order was extracted and issued by the Deputy Registrar on 19th July 2013. The court found that the 1st, 2nd and 3rd respondents had not denied that, while the orders were in force and while the green cards were held by the DCIO, they transferred the land, prepared a Memorandum of Transfer, altered the green cards with the Kwale County Government, and undertook development including boreholes, subdivision and quarrying. Counsel's arguments that the defendants held title deeds and had occupied the land since time immemorial were held irrelevant to contempt. The court found the respondents in contempt and ordered their arrest and production in court to show cause why they should not be punished.

Key legal issues

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Contempt of consent court orders

Holding

The 1st, 2nd and 3rd respondents, having been privy to the consent order barring encroachment, transfer and alteration of the green cards, were in contempt when they transferred the land, altered green cards with the Kwale County Government and undertook development including boreholes, subdivision and quarrying.

Reasoning

The court recorded that the consent order of 8th July 2013 had been signed by counsel acting for the respondents and extracted on 19th July 2013, so the parties knew of it. Despite the orders being in force, and while the green cards were held by the DCIO pursuant to court orders, the respondents effected transfers, prepared a Memorandum of Transfer, altered green cards, subdivided, drilled boreholes and quarried stones. Title and prior occupation were held to have no relevance to contempt.

p. 3

Legal principles established

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  • Parties cannot disobey court orders to which they were privy; ownership claims and long occupation are irrelevant to contempt of court orders.

Court orders

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  1. 1.The three respondents found in contempt of court to be arrested and brought to court to show cause why they should not be punished as the law requires
Jurisdiction invoked
Sections 3, 3A and 63E of the Civil Procedure Act and Order 40 Rules 1, 3 and 4 of the Civil Procedure Rules (contempt of court orders issued in the suit)

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, "Mhandisi Enterprises Ltd v Mohamed Swalehe Mwajembe & 8 others [2014] KEELC 206 (KLR)", Case Analysis (2014). Civil Suit No. 126 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/206/eng@2014-09-18

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