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ELCOtherEnvironment and Land Case at Nakuru (suit commenced 29th January 2013; application dated 30th April 2015)· [2016] KEELC 1094 (KLR)

Benjamin Abila Ndungu v Johnson Ndungu Karanja & 5 others [2016] KEELC 1094 (KLR)

Environment & Land Court

16 February 2016

MSMunyao Sila

2,429 words in judgment

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The bottom line

What this practically means

Executive summary

This was a ruling on the plaintiff's application dated 30th April 2015 under Order 40 and Order 51 of the Civil Procedure Rules, seeking attachment of the 2nd defendant's property or, alternatively, committal of the 2nd defendant to prison for six months for disobeying orders issued on 30th June 2014 by Waithaka J, which restrained the removal of a restriction over parcel Kampi Ya Moto/Menengai Block 1/602 and directed registration of the order against the title. The plaintiff deposed that the order was served on the District Land Registrar on 3rd July 2014, yet a search showed the restriction removed, the land subdivided into parcels 1984-2004, and the order only registered on 11th August 2014. The current registrar, Mr Caleb Sunguti, explained he took office in April 2015, that the subdivision was registered on 21st July 2014 before instructions to register the order were received on 24th July 2014, and that the restriction had already been removed when the order was issued. Interested parties who purchased the land supported this. The court held the Lands office erred in not acting on the order promptly upon service, rejecting the argument that it had to await State Law Office instructions, and reaffirmed that a person must obey a court order immediately upon becoming aware of it. However, since it could not identify who in the Lands office was served and responsible, and the current registrar took office after the events, the court declined to attach property or commit anyone to prison. Instead, it directed the plaintiff to amend his plaint within 14 days to enjoin all purchasers of parcel 602 and its subdivisions, made preservatory orders against registration of dispositions and construction on the parcels, and awarded costs to the plaintiff against the 2nd defendant.

Key legal issues

Whether the 2nd defendant (District Land Registrar) disobeyed the order of 30th June 2014

Holding

Yes - the Lands office erred in not acting on the order promptly upon being served on 3rd July 2014

Reasoning

The order of 2nd July 2014 was served on the Lands office on 3rd July 2014, yet it was only registered on 11th August 2014, after the property had been subdivided and new numbers issued. The registrar's claim that he awaited State Law Office instructions of 24th July 2014 was rejected; the office had to act immediately upon service. The learned judge's order contemplated registration of the order in place of the removed restriction, barring further dispositions.

p. 4

Whether attachment of property or committal to prison should follow

Holding

No - the court declined to punish because it could not identify the individual responsible, and the current registrar took office after the events

Reasoning

It was unclear who in the Lands office was served with the order and who proceeded to subdivide the property. Mr Sunguti, the current registrar, was transferred to Nakuru in April 2015, after all the activities complained of. With the responsible officer unidentified and the property already transferred to several other persons, punishing Mr Sunguti would be inappropriate; the court instead directed joinder of the purchasers and preservation of the parcels.

p. 4

Legal principles established

A person must obey a court order immediately upon becoming aware of it, and cannot excuse delay by claiming his counsel had not advised him on how to act on it.
A public office served with a court order ought to act on it immediately upon receipt and need not await instructions from the State Law Office.
Before punishing for contempt, the court must be able to identify the specific person who was served with and failed to comply with the order.

Court orders

1.Plaintiff given 14 days to amend his plaint and enjoin all parties who purchased parcel Kampi Ya Moto/Menengai Block 1/602 and its subdivisions (numbers 1984-2004)
2.Interim order that there be no registration of any disposition in land parcels Kampi Ya Moto/Menengai Block 1/602 and 1984-2004 pending amendment of the plaint
3.Order that there be no construction of any structures on these parcels pending amendment of the plaint
4.If the plaintiff does not amend his plaint within 14 days, the stay order will lapse
5.Costs of the application awarded to the plaintiff as against the 2nd defendant

Authorities

Legislation

Civil Procedure RulesOrder 40
Civil Procedure RulesOrder 51

Jurisdiction invoked: Order 40 and Order 51 of the Civil Procedure Rules (contempt/enforcement of court orders in pending suit)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Benjamin Abila Ndungu v Johnson Ndungu Karanja & 5 others [2016] KEELC 1094 (KLR)", Case Analysis (2016). Environment and Land Case at Nakuru (suit commenced 29th January 2013; application dated 30th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1094/eng@2016-02-16

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