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ELCDismissedMotion dated 13th February, 2015 (Machakos)· [2017] KEELC 1936 (KLR)

Alfred Karasha & another v Simeon Joseph Ole Karasha & 3 others [2017] KEELC 1936 (KLR)

Environment and Land Court
22 September 2017
OAO.A. Angote
965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail landowners for disobeying an order because proof they were actually served fell short of the very high standard contempt demands.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by a Notice of Motion dated 13th February 2015 seeking an order to commit Respondents Nos. 1, 2 and 3 to civil jail for contempt and cancellation of titles issued in breach of a court order. The court had on 8th October 2014 restrained the Respondents from amending the Registered Index Map, partitioning or transferring land parcel Ngong/Ngong/506 for fourteen days. Despite the claimed service of the orders with a penal notice, on 21st October 2014 the subdivision was registered and title deeds issued for fourteen resultant parcels in the name of the 1st Defendant, Simeon Ole Karosha. The 1st Defendant denied service of the order, admitting only service of the application; Defendants 2, 3 and 4 filed no reply. The court framed four issues: service, disobedience, consequences and costs. It found material contradictions: the Applicants' advocate had on 23rd October 2014 sought an adjournment on the ground that the 2nd and 3rd Defendants had not been served, contradicting the alleged affidavit of service claiming service on 13th and 17th October 2014. The process server never filed an affidavit in support of the application and was not called for examination. Applying the standard in Shimmers Plaza Ltd v National Bank Ltd, that the court must be satisfied beyond any shadow of doubt that the alleged contemnor had notice of the order, the court found doubt in favour of the Respondents. The application was dismissed with no orders as to costs, with the status quo on the subdivision maintained until further orders.

Key legal issues

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01

Proof of service of court orders in contempt proceedings

Holding

Service was not proved beyond a shadow of doubt; contradictions between the process server's alleged affidavit of service and counsel's own statement in court on 23rd October 2014 created doubt

Reasoning

The record showed that on 23rd October 2014 the Applicants' advocate sought an adjournment on the ground that the 2nd and 3rd Defendants had not been served, contradicting the claimed affidavit of service. The process server never filed an affidavit in support of the application and was not called for examination by either side. Given the high threshold in contempt proceedings, involving possible deprivation of liberty, the doubt favoured the Respondents.

p. 3

Legal principles established

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  • The court must satisfy itself beyond any shadow of doubt that the person alleged to be in contempt had knowledge or notice of the order before committing for contempt
  • The threshold for contempt proceedings is high because they may result in deprivation of liberty

Court orders

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  1. 1.Application dated 13th February, 2015 dismissed with no orders as to costs
  2. 2.Status quo on the resultant subdivision of the suit land to be maintained until further orders of the court

Authorities

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Cases cited (2)

  • Criticos vs. Attorney General & 8 others
    (2012) eKLR
  • Shimmers Plaza Ltd vs. National Bank Ltd
    Nairobi Civil Appeal No. 33 of 2012
Jurisdiction invoked
Inherent powers of the court in contempt proceedings arising from orders issued in a suit over land parcel Ngong/Ngong/506

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, "Alfred Karasha & another v Simeon Joseph Ole Karasha & 3 others [2017] KEELC 1936 (KLR)", Case Analysis (2017). Motion dated 13th February, 2015 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1936/eng@2017-09-22

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