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ELCDismissedJudicial Review Motion (Nakuru ELC) — ex-parte School Committee Bagaria Primary School· [2016] KEELC 387 (KLR)

School Management Committee Bagaria Primary School v Attorney General & 3 Others Interested Party Charles Njenga Karibe [2016] KEELC 387 (KLR)

Environment and Land Court
13 October 2016
827 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail school committee members for contempt because the orders they allegedly broke had been stayed and the application was filed in the wrong court.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nakuru (Munyao Sila J) on an application dated 3 May 2016 by the interested party, seeking to have five members of the School Management Committee of Bagaria Primary School held in contempt of orders issued on 26 July 2011 in Molo PM Land Dispute Case No. 10 of 2011 and committed to civil jail for six months. The background was a judicial review motion filed by the School Committee on 10 August 2011 seeking certiorari to quash an award of the Molo Land Disputes Tribunal made on 23 May 2011 over the boundary between parcels Nakuru/Rare/Bagaria/1297 and 1134, which award had been adopted as judgment of the Molo Senior Resident Magistrate's Court with a decree issued on 12 July 2011. The interested party alleged that on 7 April 2016 the School Committee entered the suit premises, cut down his trees and erected a fence, flouting the decree and orders. No response was filed. The court declined the application on three grounds: first, the orders complained of had been stayed when leave to commence judicial review was granted on 10 August 2011, and one cannot flout suspended orders; secondly, the judicial review motion was not the proper forum for contempt of orders issued in another suit, a standalone application or the issuing court being appropriate; thirdly, the court saw no order actually flouted, since cutting trees and fencing is not akin to disobeying an order that a Government Surveyor straighten a disputed boundary. The application was dismissed with no orders as to costs.

Key legal issues

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01

Effect of a stay of the orders allegedly breached

Holding

Contempt cannot lie for orders that have been stayed; the Tribunal decree and survey order were suspended when leave for judicial review was granted on 10 August 2011.

Reasoning

The orders said to have been flouted were those of the Molo Senior Resident Magistrate leading to the decree. Upon grant of leave to commence judicial review on 10 August 2011, those orders were stayed. A party cannot be said to disobey orders that are no longer operative or enforceable, so the foundation of the contempt application fails.

p. 2
02

Proper forum for the contempt application

Holding

A contempt application relating to orders issued in another suit must be brought as a standalone application or before the court that issued the order, not within the judicial review motion.

Reasoning

The present suit is a judicial review motion seeking certiorari against the Tribunal's award. The order allegedly breached was issued by the Molo court in the land dispute case, not in this suit. Embedding a contempt application in this motion was procedurally improper.

p. 2
03

Whether any violation of the order was established

Holding

The court doubted any violation: cutting trees and fencing does not obviously flout an order directing a Government Surveyor to straighten a boundary.

Reasoning

The annexed order merely directed that a Government Surveyor straighten the disputed boundary. The alleged acts — cutting trees and erecting a fence — do not plainly constitute disobedience of such an order, and the court was not persuaded of any violation on the material presented.

p. 2

Legal principles established

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  • One cannot be held in contempt of orders that have been stayed or suspended.
  • Contempt of orders issued in another suit should be pursued in that court or by a standalone application, not within an unrelated judicial review motion.

Court orders

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  1. 1.The interested party's application dated 3 May 2016 seeking contempt orders is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (orders of certiorari over a Land Disputes Tribunal award)

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, "School Management Committee Bagaria Primary School v Attorney General & 3 Others Interested Party Charles Njenga Karibe [2016] KEELC 387 (KLR)", Case Analysis (2016). Judicial Review Motion (Nakuru ELC) — ex-parte School Committee Bagaria Primary School. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/387/eng@2016-10-13

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