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ELCDismissedNotice of motion dated 28th July, 2016 (suit number not stated in judgment)· [2017] KEELC 271 (KLR)

Michael Macharia Njarara v Jeremiah Muthomi & another [2017] KEELC 271 (KLR)

Environment and Land Court
28 February 2017
LWL N Waithaka
799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to punish the plaintiff for disobeying a court order because the order only restricted the defendants, not him.

What this practically means

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Executive summary

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The defendants/applicants moved the court by notice of motion dated 28th July 2016 seeking leave to commence contempt proceedings against the plaintiff/respondent, cancellation of any titles issued over L.R No. 9831/14 after 5th December 2014, demolition of fences on the suit property with police supervision, and costs. They relied on an order issued by Ngaah J on 5th December 2014 restraining the defendants from subdividing or dealing with the suit property, alleging the plaintiff had disobeyed it by entering and fencing the land. The respondent opposed, arguing that the orders were obtained by the respondent to restrain the applicants from subdividing, that the orders had been registered against the title, and that the application was designed to waste the court's time. The court framed a single issue: whether the applicants had made a case warranting the orders sought. Examining the order of 5th December 2014, the judge held that it was directed at the defendants and did not restrain the plaintiff from entering the suit property or erecting fences. If the plaintiff was in fact subdividing and obtaining new titles, the applicants were at liberty to file the appropriate motion supported by evidence. The court found the motion amenable to striking out under Order 2 Rule 15(a), (b) and (c) of the Civil Procedure Rules, applying Transcend Media Group Ltd v IEBC and Mpaka Road Development Co. Ltd v Abdul Gafur Kana. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicants made out a case for contempt and ancillary orders against the plaintiff

Holding

No; the order relied upon restrained the defendants, not the plaintiff, so it could not found contempt proceedings against the plaintiff

Reasoning

The court examined the verbatim order issued by Ngaah J on 5th December 2014 and found it was an injunction directed at the defendants, barring them from alienating, subdividing or dealing with the parcel. It did not restrain the plaintiff from entering or fencing the property. Allegations that the plaintiff was subdividing and obtaining titles had to be established by evidence in an appropriate motion, not this one.

p. 2
02

Whether the application was defective and liable to be struck out

Holding

Yes; the motion warranted striking out under Order 2 Rule 15(a), (b) and (c) of the Civil Procedure Rules

Reasoning

Relying on Transcend Media Group Ltd v IEBC and Mpaka Road Development Co. Ltd v Abdul Gafur Kana, the court held the application to be without merit and amenable to striking out, and dismissed it with costs to the respondent.

p. 2

Legal principles established

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  • Contempt cannot be founded on an order that was not directed at the alleged contemnor

Court orders

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  1. 1.The notice of motion dated 28th July, 2016 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(a), (b) and (c)

Cases cited (2)

  • Transcend Media Group Ltd v Independent Electoral and Boundaries Commission
    [2015] eKLR
  • Mpaka Road Development Co. Ltd v Abdul Gafur Kana T/A Anil Kapuri Pan Coffee House
    [2001] eKLR
Jurisdiction invoked
Original jurisdiction; application under the Civil Procedure Rules (contempt enforcement of an interlocutory order)

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, "Michael Macharia Njarara v Jeremiah Muthomi & another [2017] KEELC 271 (KLR)", Case Analysis (2017). Notice of motion dated 28th July, 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/271/eng@2017-02-28

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