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ELCOtherEldoret ELC Case (not stated in excerpt; suit concerning LR 8300 and LR 8301 / SOY/KAPSANG parcels)· [2017] KEELC 476 (KLR)

Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 Others [2017] KEELC 476 (KLR)

Environment and Land Court
24 November 2017
3,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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An Eldoret court allowed two sons to harvest maize on disputed family land but froze all future planting until the ownership case is decided.

What this practically means

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Executive summary

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Jackson Kiprotich Kibor, the plaintiff, moved the Environment and Land Court at Eldoret by notice of motion under certificate of urgency seeking an injunction restraining the 12th and 13th defendants, his sons Evans Kipkosgei Kibor and Ezekiel Kipng'etich Kibor, and their agents from cutting and harvesting maize on 300 acres in LR 8300 and LR 8301; seeking that they be cited for contempt of status quo orders said to have been issued on 27th February 2017, punished by committal to civil jail for up to six months or a fine; seeking orders that they purge the contempt, pay redress and give undertakings to vacate; and seeking ancillary orders involving the County Commissioner, OCS Central Police Station Eldoret and the area chief. The defendants opposed, contending no personal service of the orders, that breach of an injunction must be proved beyond reasonable doubt, that they farmed only their own parcels (200 and 172 acres) where they had planted in April 2017, that the crop had largely been harvested, and that the plaintiff sought to harvest where he did not sow. The court reviewed the law of contempt, holding that knowledge of an order supersedes personal service and that the order was issued in the presence of counsel. It nonetheless found the plaintiff's application premature and disallowed it, permitted the 12th and 13th defendants to harvest the maize, and, exercising its discretion after 12 months, reviewed the status quo order to prohibit any ploughing or planting on the suit lands until the suit is heard and determined. Each party was ordered to bear its own costs. Judgment dated and delivered at Eldoret on 24th November 2017.

Key legal issues

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01

Whether notice/knowledge of the status quo order was established despite absence of personal service

Holding

The status quo order was issued in the presence of counsel, so service did not arise and the contemnors were presumed to know the order

Reasoning

The court surveyed authority from Lenaola J in Basil Criticos, the Court of Appeal in Shimmers Plaza, the Supreme Court of Canada in Bhatnager, and Ex parte Langley, holding that knowledge supersedes personal service. Since the order of 31.5.2016 was made in the presence of all counsel, the alleged contemnors were presumed to have known of it, and the service objection fell away.

p. 6
02

Whether the defendants committed contempt of the status quo orders by harvesting maize on the 300 acres

Holding

No contempt established; the plaintiff's application was premature and harvesting of the maize was allowed

Reasoning

The status quo order meant parties were to continue utilizing the land in their possession pending determination. The court found the plaintiff's application premature; the defendants had ploughed and planted their crop and stopping the harvest would waste it. The court instead allowed harvesting but reviewed the status quo to bar future ploughing and planting until the suit is determined.

p. 7
03

Whether the status quo order should be reviewed after 12 months

Holding

The court reviewed the status quo order and prohibited further ploughing and planting on the suit lands pending determination

Reasoning

The court noted that 12 months had expired since the status quo order was issued and, exercising its discretion, varied the order: no ploughing or planting of any crop on the suit lands until the suit is heard and determined, preserving the position until trial.

p. 7

Legal principles established

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  • Knowledge of a court order supersedes the requirement of personal service as a pre-condition to contempt liability
  • The burden of proving contempt, including notice of the order, is beyond reasonable doubt because liberty of the subject is at stake
  • Every person against whom a court order is made is under an unqualified obligation to obey it unless and until it is discharged
  • Obedience to court orders is mandatory and the dignity and authority of the court must be protected by punishing those who flagrantly disobey orders

Court orders

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  1. 1.Plaintiff's application dismissed as premature and not allowed
  2. 2.The maize to be harvested by the 12th and 13th defendants
  3. 3.The status quo order reviewed: there will be no ploughing and planting of any crop on the suit lands until the suit is heard and determined
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 15

Cases cited (9)

  • Basil Criticos Vs Attorney General and 8 Others
    [2012] eKLR
  • Ex parte Langley
    1879, 13 Ch D. 110 (C.A)
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Bhatnager v. Canada (Minister of Employment and Immigration)
    [1990] 2 S.C.R. 217
  • United States v. Revie
    834 F.2d 1198 (5th Cir. 1987)
  • Hadkinson –vs- Hadkinson
    (1952) ALL ER 567
  • Chuck –vs- Cremer
    1 Coop. temp. Cott 342
  • Refrigeration and Kitchen Utensils Ltd. –vs- Gulabchand Popatlal Shah & Another
    Civil Application No. 39 of 1990
  • Avery v. Andrews
    (1882) 51 LJ Ch. 414
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land dispute (no specific constitutional/statutory provision stated in the judgment)

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, "Jackson Kiprotich Kibor v Kipruto Arap Lelei & 19 Others [2017] KEELC 476 (KLR)", Case Analysis (2017). Eldoret ELC Case (not stated in excerpt; suit concerning LR 8300 and LR 8301 / SOY/KAPSANG parcels). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/476/eng@2017-11-24

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