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ELCDismissedNot stated in the judgment as provided· [2017] KEELC 3649 (KLR)

Wanjala Minng Company Limited v National Land Commission & 3 others [2017] KEELC 3649 (KLR)

Environment and Land Court
1 February 2017
AOA. Omollo
3,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a contempt application because the applicant could not prove the people accused were actually served with or knew about the court order.

What this practically means

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Executive summary

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This was a contempt application dated 5th February 2016 brought by the plaintiff under sections 1A & 1B, 3A and 63 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking committal to civil jail of five named officers for disobeying an ex parte injunction order first granted on 24th October 2014, attachment of property of the National Land Commission and the 4th Respondent, setting aside of the excavation-barring order of 23rd November 2015, and a declaration that the title issued to the 4th Respondent on 24th August 2015 was a nullity. Each respondent opposed the application, arguing non-service within three days under Order 40 rule 4(3), absence of personal service, and lack of mandate to issue titles. The court framed three questions: whether a valid order was in force, whether it was served or known to the respondents, and whether it was disobeyed. The court held the order remained valid despite late service since it had been extended and never discharged, but found that the applicant failed to prove personal service on, or personal knowledge of the order by, any of the named persons, applying the quasi-criminal standard of proof for contempt. Disobedience could not be established without knowledge of the order. The court declined to nullify the title on public-land grounds, which fell outside the contempt application. All prayers were dismissed with costs to the respondents.

Key legal issues

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01

Whether there was a valid subsisting court order capable of being disobeyed

Holding

Yes; the order of 31.10.2014 as extended remained valid despite non-service within three days

Reasoning

The court accepted that Order 40 rule 4(3) requires service within three days, but applying Article 159 and the overriding objective, that default does not automatically lapse the order where the court has extended it and no party has moved to vary or discharge it.

p. 4
02

Whether the respondents and named individuals were served with or had personal knowledge of the order

Holding

No; service and personal knowledge were not proved against any named contemnor

Reasoning

Receiving stamps bore no signatures and no affidavit identified who within the government departments was served. The process server's affidavit did not show the 4th Respondent's chairman was informed of the order's contents, and the applicant led no evidence the State Counsel's clients knew of the order before the title issued.

p. 5
03

Whether the order was disobeyed

Holding

No; disobedience cannot be established absent proof of service or knowledge

Reasoning

Since the standard of proof in quasi-criminal contempt proceedings was not met on service and knowledge, the alleged breach - issuing title on 24 August 2015 - could not amount to contempt. The court also declined to nullify the title on public-land arguments raised outside the grounds for determination.

p. 6

Legal principles established

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  • An order made by a court of competent jurisdiction must be obeyed until it is discharged
  • Non-service of an injunction order within three days under Order 40 rule 4(3) does not automatically invalidate it where the court has been extending the orders
  • Contempt must be proved to the standard beyond reasonable balance; personal service or personal knowledge of the order is required before punishment

Court orders

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  1. 1.The application dated 5th February 2016 was dismissed in its entirety
  2. 2.Costs of the application were awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 1B, 3A, 63
  • Civil Procedure RulesOrder 40 Rules 3, 4, 5, 6 & 7
  • Constitution of KenyaArticle 62(2)
  • Constitution of KenyaArticle 159
  • Land ActSection 23(2)

Cases cited (6)

  • Harish Chandra B. Joban Putra & Another vs Paramount Universal Bank & 3 Others
    (2014) eKLR
  • Filista Chamai Sostan vs Samson Mutai
    (2012) eKLR
  • Hadkiston vs Hadkiston
    (1952) All ER 567
  • Ochiro & Another vs Okombo & 4 Others
    (1989) KLR
  • Nyamogo vs KP & TC
    (1990 – 1994) E. A 464
  • Shimmers Plaza Ltd vs NBK Ltd
    (2015) eKLR
Jurisdiction invoked
Sections 1A & 1B, 3A and 63 of the Civil Procedure Act and Order 40 Rules 3, 4, 5 & 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wanjala Minng Company Limited v National Land Commission & 3 others [2017] KEELC 3649 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3649/eng@2017-02-01

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