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ELCAllowedNot stated in the judgment· [2017] KEELC 2385 (KLR)

Janefer Chebii Kimetto (Suing as the personal representative of the estate of the estate of Jonah Kipkoske arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2017] KEELC 2385 (KLR)

Not expressly stated in the judgment (a superior court presided over by a Judge, Kericho)
12 July 2017
JOJ. M. Onyango
942 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court jailed five officials for three months because they kept building on private land after a court order told them to stop.

What this practically means

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Executive summary

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The plaintiff sued the Board of Governors of Chebwagan Youth Polytechnic by plaint dated 26th May 2016, alleging trespass onto land parcel KERICHO/LITEIN/330 and seeking an injunction restraining the defendant from constructing permanent structures. A temporary injunction was granted on 2nd August 2016 stopping the construction, and the Affidavit of Service shows it was served on 11th August 2016 on Geoffrey Kemei, Secretary to the defendant in charge of Chebwagan Youth Polytechnic, whose duty was to communicate it to the Board. Despite service, the defendant continued and completed the permanent structures. The plaintiff then filed the application dated 22nd February 2017 seeking committal to civil jail of the Board of Governors members - Pastor Kenneth Rotich, Geoffrey Koros, Abdrew Bii, Zipporah Soi and Geoffrey Kemei - for disobeying the court order. The application was served on each named person on 14th March 2017, but the defendants filed no response and did not attend the hearing. Framing two issues - whether the defendants were in contempt of the 2nd August 2016 order, and whether the plaintiff was entitled to the orders sought - the court found contempt proved, the plaintiff's averments being uncontroverted. Relying on Order 40 Rule 3(1) of the Civil Procedure Rules and Section 63(c) of the Civil Procedure Act, and the principle that obedience to court orders is a plain and unqualified obligation, the court committed the named individuals to jail for three months with immediate effect and awarded the plaintiff the costs of the application. Judgment delivered at Kericho on 12th July 2017 by J.M. Onyango J.

Key legal issues

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01

Whether contempt of the injunction order of 2nd August 2016 was established

Holding

Contempt was proved: the injunction order was served on Geoffrey Kemei, Secretary of the BOG, who had a duty to communicate it to the other Board members, yet construction was completed contrary to the order, and no explanation was offered

Reasoning

The court found the plaintiff obtained an injunction restraining construction on her land. The order was served on Geoffrey Kemei, Secretary to the defendant, whose duty was to communicate it to Board members. Notwithstanding service, the permanent structures were completed contrary to the order. The defendants filed no replying affidavit and attended no hearing, so the plaintiff's averments were uncontroverted and no explanation for disobedience was offered. Contempt was accordingly established against the named Board of Governors members.

p. 2
02

Whether the applicant is entitled to committal of the named Board of Governors members to civil jail

Holding

Yes; under Order 40 Rule 3(1) of the Civil Procedure Rules and Section 63(c) of the Civil Procedure Act, the court committed the named individuals to jail for three months with immediate effect

Reasoning

The court invoked the statutory enforcement powers for breach of an injunction, permitting attachment of property and detention in prison for up to six months. Guided by the rationale that contempt proceedings safeguard the rule of law and that obedience to court orders is a plain and unqualified obligation, and having found the defendants guilty of contempt, the court exercised its discretion to commit the named individuals to jail for three months effective immediately.

p. 3

Legal principles established

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  • The obligation to obey a court order made by a court of competent jurisdiction is plain and unqualified unless and until it is discharged
  • Courts punish contempt to safeguard the rule of law, not to protect judicial integrity or placate the applicant

Court orders

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  1. 1.Commitment of Pastor Kenneth Rotich, Geoffrey Koros, Andrew Bii, Zipporah Soi, and Geoffrey Kemei to civil jail for a period of three months with immediate effect for contempt of the court order dated 2nd August 2016
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Civil Procedure ActSection 63(c)

Cases cited (3)

  • TEACHERS SERVICE COMMISSION V KENYA NATIONAL UNION OF TEACHERS & 2 others
    (2013) eKLR
  • AFRICAN MANAGEMENT COMMUNICATION INTERNATIONAL LIMITED V JOSEPH MATHENGE MUGO & ANOTHER
    (2013) eKLR
  • Hadkinson v Hadkinson
    (1952) P 285 at 288
Jurisdiction invoked
Order 40 Rule 3(1) of the Civil Procedure Rules and Section 63(c) of the Civil Procedure Act (contempt/enforcement of an injunction)

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, "Janefer Chebii Kimetto (Suing as the personal representative of the estate of the estate of Jonah Kipkoske arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2017] KEELC 2385 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2385/eng@2017-07-12

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