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ELCPartially AllowedNot stated in judgment (suit re land title Kisii/Municipality/Block I/182)· [2017] KEELC 2453 (KLR)

Christopher Onsembe Manduku v Kennedy Ogora Mongare & 3 others [2017] KEELC 2453 (KLR)

Environment and Land Court
12 May 2017
3,346 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii on a Notice of Motion dated 22nd June 2016 in which the plaintiff sought to cite the 3rd defendant, Charles Oteki Rioba, for contempt of a consent status quo order issued on 27th October 2015 barring the parties from constructing, fencing, selling, alienating or transferring land parcel Kisii/Municipality/Block I/182 pending hearing of the substantive title dispute. The 3rd defendant raised a preliminary objection contending the court lacked jurisdiction under Section 5 of the Judicature Act and that the application was premature and an abuse of process; he also argued no extracted order was personally served on him and that only a pre-existing iron sheet hoarding and pillars stood on the land. The court, citing Christine Wangari Gachege, Basil Criticos, Kitangila Limited, Gatimu Farmers and Africa Management Communication International, held that neither leave nor personal service of the order is a prerequisite to contempt; knowledge of the order suffices. Since the 3rd defendant's counsel was present when the order was made and the defendant conceded awareness, the knowledge requirement was met. On the evidence, photographs C1 and C2 showed a freshly dug trench and fresh stone foundation, demonstrating that the iron sheet hoarding had been removed to erect a permanent stone wall in breach of the order. The court found the 3rd respondent in contempt and, instead of a custodial sentence, fined him Kshs. 50,000/= payable within 10 days, failing which he was to be arrested and committed to 30 days in civil jail.

Key legal issues

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01

Whether leave and personal service are prerequisites to contempt proceedings

Holding

Neither leave nor personal service is mandatory; knowledge of the order is the key requirement

Reasoning

Following Christine Wangari Gachege (CA), Kitangila Limited, Basil Criticos and Africa Management Communication International, the court held that the old rule in Mwangi Wangondu and Mutitika v Baharini Farm requiring personal service and a penal notice endorsement had been departed from. Where the contemnor was present through counsel or otherwise aware of the order, contempt lies without personal service.

p. 5
02

Whether the 3rd defendant breached the status quo order

Holding

Yes - erection of a permanent stone wall where only a temporary iron sheet hoarding stood breached the order

Reasoning

Photographs annexed C1 and C2 showed a freshly dug trench and fresh stone foundation, inconsistent with the 3rd defendant's explanation that the hoarding fell off from disuse. The court found the iron sheet hoarding was removed to allow erection of a permanent wall, expressly barred by the order of 27th October 2015 which prohibited construction or fencing.

p. 4
03

Appropriate sanction for contempt

Holding

Fine of Kshs. 50,000/= with default committal to 30 days civil jail

Reasoning

Though contempt ordinarily attracts a custodial sentence, the court considered the attendant circumstances and gave the contemnor the option of a fine payable within 10 days, failing which arrest and 30 days' committal to civil jail would follow.

p. 6

Legal principles established

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  • Personal service of a court order is not mandatory; knowledge of the order suffices for a contempt finding
  • No leave is required to commence contempt proceedings under Section 5(1) of the Judicature Act

Court orders

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  1. 1.The 3rd respondent is held to be in contempt of the court order of 27th October 2015
  2. 2.The 3rd respondent to pay a fine of Kshs. 50,000/= within 10 days from the date of the ruling
  3. 3.Failing payment of the fine, the 3rd respondent, Charles Oteki Rioba, shall be arrested and committed to serve a prison term of 30 days in civil jail
  4. 4.The plaintiff's application dated 24th July 2015 (injunction) earlier dispensed with with costs in the cause

Authorities

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Legislation

  • Judicature Act, Cap 8 Laws of KenyaSection 5(1)
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Rules of the Supreme Court of EnglandOrder 52, Rule 81.4

Cases cited (8)

  • Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Basil Critocos vs Attorney General & 8 Others
    [2012] eKLR
  • Kitangila Limited vs Keziah Mumbi Paul & 5 Others
    [2014] eKLR
  • Superior Homes (K) Ltd vs East African Portland Cement
    HC ELC No. 931 of 2013 (unreported)
  • Mwangi HC Wangondu vs Nairobi City Commission
    CACA No. 95 of 1998 (unreported)
  • Mutitika vs Baharini Farm Limited
    [1985] KLR 227
  • Gatimu Farmers Company vs Geoffrey Kagiri Kimari & 3 Others
    [2005] eKLR
  • Africa Management Communication International Ltd vs Joseph Mathenge Mugo & Another
    [2013] eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act, Cap 8 Laws of Kenya

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, "Christopher Onsembe Manduku v Kennedy Ogora Mongare & 3 others [2017] KEELC 2453 (KLR)", Case Analysis (2017). Not stated in judgment (suit re land title Kisii/Municipality/Block I/182). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2453/eng@2017-05-12

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