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ELCDismissedNot stated in the judgment (Environment & Land Court, Nakuru; suit commenced by plaint filed 31 August 2012)· [2016] KEELC 306 (KLR)

John Ngugi Gachau v Alexander Ngotho Ngunyi & 7 others [2016] KEELC 306 (KLR)

Environment and Land Court
31 March 2016
MSMUNYAO SILA
3,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an injunction protecting a footpath ended once the Land Registrar settled the boundary dispute, so closing it was not contempt.

What this practically means

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Executive summary

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The defendants (applicants) filed a notice of application dated 18 December 2015 under Sections 1A, 3A and 63(e) of the Civil Procedure Act and various Orders of the Civil Procedure Rules, seeking restoration of a footpath and bridge over the Gathuru River, a temporary injunction, a declaration of contempt against the plaintiff and four police officers, and sanctions for contempt. The application arose from a judgment of 30 January 2015 by L.N. Waithaka J, which found no proved easement or overriding interest but declined to grant an injunction restraining use of a 4-foot footpath until the dispute over the existence of an access road was determined by the Land Registrar under Sections 18 and 19 of the Land Registration Act. The Land Registrar and District Surveyor reported on 18 September 2015 that no access road existed through the plaintiff's parcels. Thereafter, on 8 and 9 December 2015, the plaintiff allegedly destroyed the bridge and fenced off the footpath. The application was abandoned against the four police officers, leaving only the plaintiff. Munyao Sila J construed the prior judgment plainly and held that the injunction was to subsist only until the Land Registrar's determination, which had been made; the plaintiff's closure of the footpath after that determination was therefore not contempt nor execution of a decree. The court declined to order restoration or a fresh injunction and dismissed the application with costs on 31 March 2016.

Key legal issues

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01

Contempt of court - duration of injunction

Holding

The plaintiff was not in contempt because the injunction issued on 30 January 2015 was expressly limited to the period before the Land Registrar's determination, and that determination had been made

Reasoning

The court construed paragraph 70 of the prior judgment according to its plain and natural meaning: the injunction was declined 'until' the Land Registrar determined whether an access road exists. The Land Registrar and District Surveyor reported on 18 September 2015 that no access road existed. The closure of the footpath occurred after that determination, so it was not a breach of the judgment, nor an execution of a non-existent decree.

p. 5

Legal principles established

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  • An injunction framed to subsist only until determination of a boundary dispute by the Land Registrar does not persist beyond that determination, even absent adoption by the court or extraction of a decree

Court orders

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  1. 1.The defendants' application dated 18 December 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 3A, 63(e)
  • Civil Procedure RulesOrder 9 Rules 9 and 10; Order 40 Rule 3(1); Order 51 Rule 1
  • Land Registration Act, 2012Sections 18 and 19
Jurisdiction invoked
Sections 1A, 3A and 63(e) of the Civil Procedure Act, Cap 21, and Order 9 Rules 9 and 10, Order 40 Rule 3(1) and Order 51 Rule 1 of the Civil Procedure Rules

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, "John Ngugi Gachau v Alexander Ngotho Ngunyi & 7 others [2016] KEELC 306 (KLR)", Case Analysis (2016). Not stated in the judgment (Environment & Land Court, Nakuru; suit commenced by plaint filed 31 August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/306/eng@2016-03-31

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