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ELCAllowedNotice of Motion dated 26th October 2015 (Environment and Land Case, Nyahururu)· [2017] KEELC 143 (KLR)

Muruaki Farmers Co-operative Society v Mwangi Njoroge Mwangi [2017] KEELC 143 (KLR)

Environment and Land Court
28 September 2017
MOM.C. Oundo
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who ignored a court injunction and kept farming land he didn't own was jailed for six months for contempt of court.

What this practically means

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Executive summary

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This was a contempt application by Notice of Motion dated 26th October 2015, brought under Order 40 Rules 3(1) and (3) of the Civil Procedure Rules by the Plaintiff/Applicant, seeking the committal of the Defendant/Respondent to civil jail for disobeying an injunction issued on 18th May 2012 restraining the Defendant, his servants or employees from cultivating or in any way using land parcel No. Nyandarua/Muruaki/5435 pending the hearing and determination of the suit. The application was supported by an affidavit of Peter Mathenge Mucura, the chairman of the Plaintiff, who deponed that the order was extracted and personally served on the Defendant on 30th October 2012 with a penal notice; that a prior contempt application had resulted in a warrant of arrest in January 2013; and that the Defendant had promised in March 2013 to remove his crops by 30th June 2013 but never did. The Respondent filed a response but failed to attend the hearing, and the court, satisfied that service was properly effected, heard the Applicant ex parte. The court noted that Land Registrar and surveyor's reports confirmed that the Defendant had encroached 0.6 hectares onto the plaintiff's land, and that the Defendant had also refused to pay the surveyor's costs and demolished a cattle dip on the plaintiff's property despite orders in force. Applying Order 40 Rule 3(1) and the authorities on contempt, including Hadkinson v Hadkinson and Stewart Robertson v Her Majesty's Advocate, the court found the Defendant in contempt, committed him to civil jail for six months, and awarded costs of the application to the Plaintiff. Judgment was delivered at Nyahururu on 28th September 2017 by M.C. Oundo, Judge.

Key legal issues

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01

Whether the Defendant was in contempt of the injunction orders of 18th May 2012

Holding

The court found the Defendant in contempt, having continued to cultivate and use the plaintiff's land despite personal service of the order and penal notice

Reasoning

The court reviewed the proceedings, the affidavit of service showing personal service of the order and penal notice on 30th October 2012, and the Land Registrar and surveyor's reports confirming encroachment of 0.6 hectares onto the plaintiff's land. It concluded that the Defendant's continued use of the land wilfully defied the injunction and invoked Order 40 Rule 3(1) to punish the contempt by committal to civil jail for six months.

p. 3
02

The court's duty to protect its dignity and authority against deliberate disobedience

Holding

The court affirmed it must be firm on persons who deliberately disobey court orders or scuttle the court process

Reasoning

Relying on the authorities on contempt, the court held that wilful defiance of court orders affronts the authority of the court and the supremacy of the law, and that firm action is required to protect the dignity of the court, justifying committal of the contemnor.

p. 3

Legal principles established

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  • Contempt of court is constituted by conduct denoting wilful defiance of or disrespect towards the court or wilful challenge to its authority
  • Every person against whom a court order is made is under an unqualified obligation to obey it unless and until it is discharged
  • Under Order 40 Rule 3(1), the court granting an injunction may order attachment of the disobeying party's property and detention in prison for up to six months

Court orders

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  1. 1.The Defendant/Respondent is committed to civil jail for a period of 6 months for contempt of court orders
  2. 2.Costs of the application to be borne by the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1) and (3)

Cases cited (2)

  • Stewart Robertson vs. Her Majesty's Advocate
    2007 HCAC63
  • Hadkinson vs. Hadkinson
    (1952) ALL ER 567
Jurisdiction invoked
Order 40 Rules 3(1) and (3) of the Civil Procedure Rules, in the pending suit concerning land parcel No. Nyandarua/Muruaki/5435

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, "Muruaki Farmers Co-operative Society v Mwangi Njoroge Mwangi [2017] KEELC 143 (KLR)", Case Analysis (2017). Notice of Motion dated 26th October 2015 (Environment and Land Case, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/143/eng@2017-09-28

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