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ELCDismissedELC Case No. 346 of 2013 (contempt application dated 2.2.2016)· [2017] KEELC 3088 (KLR)

Samson K. A. Tim & another v Grace Kimoi Bittok & 5 others [2017] KEELC 3088 (KLR)

Environment and Land Court
31 March 2017
AOA. Ombwayo
2,492 words in judgment
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The bottom line

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The Eldoret Environment and Land Court declined to jail family members for disobeying land injunctions because a pending succession case with its own status quo order made contempt untenable.

What this practically means

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Executive summary

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The applicant, Samson K. A. Tim, moved the Environment and Land Court at Eldoret by an application dated 2.2.2016 seeking the committal to prison of the 1st, 2nd, 3rd, 4th and 6th respondents for disobeying an order of injunction issued on 30th September 2014 restraining dealings with land parcels Lembus/Torongo/790, 791 and 792, and a further order issued on 24th November 2015. He alleged that the 1st to 3rd respondents continued grazing livestock and ploughing the suit land, and that the 4th respondent (the Land Registrar) abetted the breach by allowing the 6th respondent, Thomas Kiptim, to register cautions over the parcels despite the subsisting orders. In reply, the 1st respondent and her son deponed that they had lived on and cultivated the family land for decades, that the applicant had never resided on it, and that the land was subject to Nakuru Succession Cause No. 57 of 2008 in which status quo orders were in place. The 4th respondent, a Land Registrar, denied contempt, deposing that the caution pre-dated the order, that he had registered the order on the green cards, and had convened a caution hearing. The court restated the Hadkinson principle and the local authorities requiring obedience to court orders, but held that the facts were unique because of the pending succession cause, the status quo order made therein on 27.5.2015, and the stay of this suit pending that cause. The committal application was dismissed with no order as to costs, the court noting it was a family matter.

Key legal issues

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01

Whether the respondents were in contempt of the injunction order of 30.9.2014 and the order of 24.11.2015

Holding

The court declined to find contempt because of the pending succession proceedings and the status quo order therein, and dismissed the application

Reasoning

The court acknowledged the Hadkinson principle and local authorities upholding obedience to court orders. However, it found the facts unique: the suit land was subject to Nakuru Succession Cause No. 57 of 2008 in which a status quo order was issued on 27.5.2015, and this suit had been stayed pending determination of that succession cause. In that context the committal application lacked substance.

p. 5
02

Whether the 4th respondent (Land Registrar) disobeyed the order by registering the caution

Holding

The caution by the 6th respondent was placed on 5.8.2014, before service of the 30.9.2014 order on the Registrar, and the order had been registered on the green cards

Reasoning

The 4th respondent deposed that he registered the order dated 30.9.2014 on all the green cards on 1.10.2014, and that the caution by the 6th respondent was lodged on 5.8.2014, before the order was served on him. He also summoned the cautioner and the applicant for a caution hearing, at which the applicant failed to appear. As a Land Registrar and officer of the court, he denied advising anyone to disobey the orders.

p. 4

Legal principles established

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  • A party who knows of a court order, whether regular or irregular, cannot be permitted to disobey it; the party must apply to court to have it discharged
  • A contemnor may in certain instances not even be heard on review until he purges the contempt

Court orders

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  1. 1.The application dated 2.2.2016 seeking committal for contempt is dismissed
  2. 2.No order as to costs

Authorities

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Cases cited (5)

  • Hadkinson vs. Hadkinson
    [1952] 2 All ER 567
  • Mutika vs. Baharini Farm Ltd
    [1985] KLR 227
  • Benard Kongo Njau –vs- City Council Of Nairobi & Another
    Nairobi High Court ELC Case No. 495 of 2009 (unreported)
  • Shah & Another t/a Lento Agencies –vs- National Industrial Credit Bank Ltd
    [2005] 1 KLR 300
  • Mawani v Mawani
    [1977] KLR 159
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court/ELC in a pending suit (order of injunction of 30.9.2014 and order of 24.11.2015)

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, "Samson K. A. Tim & another v Grace Kimoi Bittok & 5 others [2017] KEELC 3088 (KLR)", Case Analysis (2017). ELC Case No. 346 of 2013 (contempt application dated 2.2.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3088/eng@2017-03-31

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