Robins Nyangau Mosongo & another v Ngoito Leiyan & another [2017] KEELC 9 (KLR)
The bottom line
#A Kenyan landowner who ignored a court order to vacate was found in contempt, facing eviction first and arrest only if he still refused to comply.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant/Respondent was in contempt of the court order issued on 24th April, 2015
The court found the 1st Defendant in contempt: he was represented when the order was made and therefore knew of it, and he nonetheless interfered with the suit property, damaged the fence and used the posts as firewood despite a warning letter.
The court applied the elements of civil contempt: clarity of the order, knowledge by the respondent, and breach. The 1st Defendant's advocate held brief when the ruling was delivered, establishing knowledge. Exhibit 'RNM2' evidenced the order, and the Defendant persisted in disobeying it even after a warning letter from the Plaintiff's counsel. He filed no replying affidavit and did not appear to defend himself, and the court found the contempt proceedings merited.
What remedy should follow from the established contempt
The court issued a warrant of eviction against the 1st Defendant, with a warrant of arrest to issue only upon failure to comply, rather than an immediate arrest warrant.
The court noted that Justice Onguto had on 24th April, 2015 already ordered the 1st Defendant to vacate the suit property forthwith, failing which he be forcefully evicted. Building on that existing order, the court issued a warrant of eviction and provided that a warrant of arrest would issue to produce the 1st Defendant in Court if the eviction order was not obeyed. Costs were left in the cause.
Legal principles established
#- Court orders are sacrosant and must be obeyed; an aggrieved party's remedy is review or appeal, not disobedience.
- Civil contempt requires proof of the terms of the order, knowledge of the order by the respondent, and breach of the order.
- Even in unopposed contempt proceedings, the alleged contemnor ought to be granted an opportunity to be heard before punitive orders.
- Under Section 63 of the Civil Procedure Act, a court may commit a person guilty of disobedience of a temporary injunction to prison and attach his property in order to prevent the ends of justice from being defeated.
Court orders
#- 1.That a warrant of eviction be and is hereby issued against the Defendant/Respondent in respect of Plot No. 522/RESIDENTIAL - BULBUL T. CENTRE
- 2.That failure to comply with the warrant of eviction, a warrant of arrest will issue to produce the 1st Defendant in Court
- 3.That costs will be in the cause
- Jurisdiction invoked
- Order 40 Rules 3 and Order 51 Rule 1 of the Civil Procedure Rules, and Sections 3, 3A & 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robins Nyangau Mosongo & another v Ngoito Leiyan & another [2017] KEELC 9 (KLR)", Case Analysis (2017). Notice of Motion dated 1st March, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/9/eng@2017-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.