Lazarus Wanjohi Wairagu v County Govt. of Kajiado & another [2017] KEELC 3347 (KLR)
The bottom line
#A Kenyan landowner found in contempt for selling disputed land was told knowledge of a court order, not personal service, is what counts.
What this practically means
#Executive summary
#Key legal issues
#Whether personal service of the injunction order was a prerequisite to contempt findings
No - knowledge of the order supersedes personal service; the 2nd Defendant admitted his advocate notified him of the consent order
The court relied on Shimmers Plaza Ltd and Basil Criticos, holding that where a party clearly acts with knowledge of a court order, strict proof of personal service is unnecessary. The 2nd Defendant admitted in his Replying Affidavit that his advocate informed him by phone of the injunctive orders, and he instructed his advocate to record the consent, binding him.
Whether the injunction of 20th January 2015 lapsed after twelve months under Order 40 Rule 6
No - the consent order expressly provided it would subsist until hearing and determination of the suit, so it did not lapse automatically
Order 40 Rule 6 allows an injunction to subsist beyond twelve months where the court orders otherwise. The consent order, adopted by the court, provided for the injunction to remain in place pending hearing and determination of the suit. The rule applies only where the court is silent on duration; if the 2nd Defendant was dissatisfied he should have applied to set the order aside.
Whether the 2nd Defendant was in contempt
Yes - he sold the suit property on 4th August 2015 contrary to the subsisting injunction, and excavation followed
The 2nd Defendant did not deny Mr Yego's deposition that he purchased the property from him on 4th August 2015, during the pendency of the suit and contrary to the injunction. He neither informed the purchaser of the pending suit nor sought to set aside the order. His conduct was held to be an affront to the authority and dignity of the court.
Legal principles established
#- Personal service of a court order for contempt proceedings is not mandatory where the court is satisfied the contemnor was aware of the order
- A party is bound by a consent order entered into by his advocate on his instructions, and need not be personally served with the extracted order
- An injunction ordered to subsist 'pending the hearing and determination of the suit' does not lapse automatically after twelve months under Order 40 Rule 6, which applies only where the court is silent on duration
Court orders
#- 1.A finding that the 2nd Defendant is in contempt of the orders of 20th January, 2015 and should be punished, with punishment to await his mitigation
- 2.The court declined to involve the police in the matter at this stage, considering it a civil matter
- 3.The 2nd Defendant to pay the costs of the Application
- Jurisdiction invoked
- Inherent jurisdiction to punish contempt of court orders made in a civil suit before the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lazarus Wanjohi Wairagu v County Govt. of Kajiado & another [2017] KEELC 3347 (KLR)", Case Analysis (2017). Application dated 19th July, 2016 in suit re Plot No. 720-Residential, Ongata Rongai Trading Centre. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3347/eng@2017-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.