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ELCDismissedNot stated in the judgment as provided· [2017] KEELC 1541 (KLR)

John Kipkirong Ng’etich v James Kiprop Agu Ngetich & 4 others [2017] KEELC 1541 (KLR)

Environment and Land Court
28 September 2017
2,349 words in judgment
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The bottom line

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The Eldoret Environment and Land Court refused to jail three men over disputed land activities because the court order they allegedly broke never actually banned them.

What this practically means

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Executive summary

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The plaintiff sought committal of the 2nd, 3rd and 4th defendants (Paul K. Ngetich, Benjamin K. Rotich and Wilson Kipchumba Rop) to civil jail for two years and a fine of Kshs.20,000,000 for contempt of preservatory orders issued by Munyao J, which restrained interference with a survey of 15 acres of disputed land and barred allocation of the land by the Chebarus Society or any other entity pending determination of ownership. The alleged contemptuous acts were ploughing by tractor, fencing, burning vegetation and making bricks on the suit land. The defendants denied awareness of the orders and denied contempt. The court, Ombwayo J, first held that personal service was unnecessary: the defendants' counsel was in court when the order was made, and modern jurisprudence imputes knowledge to a client whose advocate attended, relying on Basil Criticos, Bhatnager and United States v. Revie. On the merits, however, the court found no breach: the order protected the survey exercise and prohibited allocation, but contained no order stopping ploughing, fencing or brick-making, and no status quo order existed on the ground. The plaintiff had the opportunity to seek such orders but did not. Applying the standard that contempt of a criminal character must be precisely defined and proved beyond peradventure - higher than a balance of probabilities but below reasonable doubt - the court found the application did not meet the required standard of proof. The application was dismissed with costs on 28 September 2017 at Eldoret.

Key legal issues

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01

Service and knowledge of the court order

Holding

Personal service was unnecessary because the defendants' counsel was in court when the order was made, and knowledge may be inferred from the advocate's presence

Reasoning

The court held that jurisprudence has shifted from the rigid requirement of personal service; where a party's advocate was present when the order was made, the client is presumed to know its contents. The judge relied on Basil Criticos, Bhatnager and United States v. Revie for the proposition that knowledge may be inferred from the solicitor's information. The applicant therefore discharged the burden on awareness of the order.

p. 4
02

Whether the alleged acts constituted breach of the order

Holding

No - the order only restrained interference with the survey and allocation of the 15 acres; it did not stop ploughing, fencing, burning vegetation or making bricks

Reasoning

The preservatory order of 6/7 October 2014 protected the 15 acres from interference with the ongoing survey and from allocation by the Chebarus Society or any other entity pending determination of ownership. The alleged acts - ploughing, fencing, burning and brick-making - were not prohibited by that order. No status quo order on the ground existed, and the plaintiff had not sought one when he could have.

p. 4
03

Standard of proof in contempt proceedings

Holding

The application failed because the alleged breach was not proved beyond peradventure - a standard above balance of probabilities but below reasonable doubt

Reasoning

Applying Refrigerator & Kitchen Utensils Ltd v Gulabchand Popatlal Shah and Gatharia Mitika v Baharini Farm, the court reiterated that contempt of a criminal character must be precisely defined and proved to the elevated intermediate standard. Since the acts alleged did not contravene the order's terms at all, the requisite standard was not met and committal could not issue.

p. 4

Legal principles established

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  • Knowledge of a court order, not personal service, is the pre-condition to liability in contempt; a party whose advocate was in court when the order was made cannot feign ignorance
  • Contempt must be proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt, and the alleged breach must be precisely defined
  • A court order, once made, must be obeyed until set aside; a party who disputes it must apply to court rather than defy it

Court orders

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  1. 1.The application for committal for contempt is dismissed with costs

Authorities

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Legislation

  • Environment and Land Court ActSection 29

Cases cited (15)

  • Ex Parte Peter Nyamu Karaguri Muhuri Karaguri v Attorney General of Kenya & 5 Others
    [2013] eKLR, H.C at Nairobi Civil Miscellaneous Application 405 of 2007
  • Hadkinson v Hadkinson
    (1952) 2 All ER 567
  • Mutitika v Baharini Farm Ltd [1985] KLR 227 (also cited as Mutika vs Baharini Farm Ltd)
    [1985] KLR 227
  • Re Maria Annie Davis
    [1889] 21 QBD 236
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Bell v Tuhoy & Another
    (2002) 3 All ER 975
  • Issacs v Robertson
    (1984) 3 All ER 140, (1985) AC 97
  • Safepak Limited v Malplast Industries Limited
    [2008] eKLR, H.C at Nairobi Civil Suit No. 365 of 2007
  • Re Bramblevale Ltd
    [1970] Ch. 128
  • Refrigerator & Kitchen Utensil Limited v Gulabchand Popatlal Shah & Others
    Court of Appeal Civil Application No. 39/1990
  • Gatharia Mitika & Others v Baharini Farm Limited
    Civil App No. 24/1995 (as printed in judgment)
  • Basil Criticos v Attorney General and 8 Others
    [2012] eKLR
  • Bhatnager v Canada (Minister of Employment and Immigration)
    [1990] 2 S.C.R. 217
  • Avery v Andrews
    (1882) 51 LJ Ch. 414
  • United States v. Revie
    834 F.2d 1198 (5th Cir. 1987)
Jurisdiction invoked
Section 29 of the Environment and Land Court Act No. 19 of 2011 (contempt jurisdiction)

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, "John Kipkirong Ng’etich v James Kiprop Agu Ngetich & 4 others [2017] KEELC 1541 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1541/eng@2017-09-28

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