Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 23rd January 2015 (Siaya ELCC)· [2015] KEELC 84 (KLR)

Evalyne Mande Oloo & another v County Government of Siaya & another [2015] KEELC 84 (KLR)

Environment and Land Court
11 November 2015
1,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Siaya court refused to jail the Siaya Governor for contempt because no construction happened after the court orders were served — timing is everything in contempt cases.

What this practically means

#

Executive summary

#
The Applicants moved the Environment and Land Court at Siaya by notice of motion dated 23rd January 2015 seeking the committal of Cornel Rasanga, Governor of the County Government of Siaya, and Mr Mkanda, the County's legal advisor, to civil jail for six months for disobeying interim orders of 23rd September 2014 and 7th October 2014. Those orders had restrained the County Government, its servants and agents from entering, trespassing on, building on or interfering with the Applicants' parcel title No. Siaya/Township/Block 1/541 pending the hearing of the main suit, and carried penal notices. Service of the orders on the legal advisor was evidenced by affidavits of service. The Respondents opposed the application through the County Secretary's replying affidavit, denying disobedience and deponing that construction of the market was complete and in use before the orders issued. The court framed three issues: service, disobedience, and whether committal should be granted. It found service established, but held that the Applicants' own affidavits and photographs confirmed development had begun by July 2014 and structures were complete or in use by the time the orders were made, and that no post-order construction was evidenced. The orders sought committal could therefore not issue; the application was dismissed with costs in the cause, with directions to comply with Order 11 so the main suit could be heard, or to explore settlement.

Key legal issues

#
01

Whether the Respondents were served with the orders

Holding

Service on the legal advisor with penal notice was evidenced by affidavits of service

Reasoning

Affidavits of service sworn by David Elvis Ochieng showed the order with penal notice was served at the 1st Defendant's Siaya offices on the legal advisor who instructed his clerk to receive the documents. The first affidavit of 29 September 2014 was on record; the second was noted as not filed with the court.

p. 2
02

Whether the Respondents disobeyed the orders

Holding

No disobedience shown; construction was complete before the orders were issued

Reasoning

The Respondent deponed that construction was complete and the market in use when the orders issued, a disposition not controverted. The Applicants' own affidavits and photographs showed development had begun by July 2014 and structures were nearly complete or in use. No post-service construction was evidenced.

p. 2
03

Whether committal should be ordered

Holding

Prayer refused; application dismissed

Reasoning

With service proven but no disobedience established, contempt was not made out. The court directed parties to comply with Order 11 of the Civil Procedure Rules so the main suit could be heard, or explore out-of-court settlement given public funds already expended on the market structures.

p. 3

Legal principles established

#
  • For a committal for contempt, the applicant must show service of the order with a penal notice and an act of disobedience after service; acts completed before service cannot constitute contempt

Court orders

#
  1. 1.The application dated 23rd January 2015 is dismissed with costs in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Inherent contempt jurisdiction of the Environment and Land Court to enforce its own orders (application for committal to civil jail for disobedience of court orders)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Evalyne Mande Oloo & another v County Government of Siaya & another [2015] KEELC 84 (KLR)", Case Analysis (2015). Notice of Motion dated 23rd January 2015 (Siaya ELCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/84/eng@2015-11-17

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