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ELCPartially AllowedNotice of Motion dated 27th October 2017 (suit re: Plot No. 9313 Malindi)· [2018] KEELC 248 (KLR)

Abdulrazak Muhsin Sheriff v Kadzo Masha Kazungu & 2 others [2018] KEELC 248 (KLR)

Environment and Land Court
14 December 2018
JOJ.O. Olola
3,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi court found two people in contempt of a land decree and issued warrants of arrest, but only where the breach was clearly proven.

What this practically means

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Executive summary

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The Plaintiff/Applicant, registered proprietor of Portion No. 9313 Malindi, moved the Court by Notice of Motion dated 27th October 2017 seeking leave to institute contempt proceedings against the 1st Defendant, Kadzo Masha Kazungu, and one Japhet Noti Charo alias Janja, a warrant of arrest, committal to civil jail for up to two years or a fine of up to KShs 20 million, and a mandatory injunction to remove building materials allegedly deposited on the suit property in disobedience of orders of 24/6/2013, 2/10/2015 and 13/07/2017, which bore penal notices. The Respondents denied knowledge of the decree, denied the acts complained of, and asserted that Noti Charo owns Plots M4 and M5 from which the suit plot was allegedly subdivided. The court held that contempt proceedings are quasi-criminal and require proof to a higher than civil standard, but that service of the decree on the Respondents' advocate, who acknowledged receipt, sufficed and knowledge could be inferred. The court found the allegation of depositing building materials unproved, being unable to discern when or how the violation occurred. However, it found circumstantial and direct evidence, including an unchallenged Occurrence Book extract from Malindi Police Station, corroborating the incident of 5th September 2017, in which the Respondents confronted a surveyor and claimed the land despite the decree, and held both in contempt. The court ordered a warrant of arrest to issue for both to show cause why they should not be committed to civil jail as prayed under Prayer 3 of the Motion. Costs were to be in the cause.

Key legal issues

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01

Sufficiency of service and knowledge of the decree

Holding

Personal service on the 1st Defendant was unnecessary; service on her advocate, who acknowledged receipt by signing and stamping, sufficed and knowledge was inferred

Reasoning

Relying on James Gitau Mwara, Shimmers Plaza and Bhatnager, the court held that when an advocate is served, knowledge of the client may be inferred. The 1st Defendant's advocate on record acknowledged the decree, and the same advocate also acted for the party cited for contempt.

p. 2
02

Whether the alleged deposit of building materials amounted to contempt

Holding

Not proved; the court was unable to find that the 1st Defendant deposited the materials in violation of the orders

Reasoning

The plaintiff's affidavit did not show when or how the order was violated, and a significant time had lapsed since the 2013 and 2014 rulings. No complaint was raised when the matter came up for hearing in February 2017, so the court declined to find contempt on this limb.

p. 3
03

The 5th September 2017 incident

Holding

Contempt established; the Respondents' silence on the incident, the OB extract and surrounding circumstances proved they wilfully defied the decree

Reasoning

The Respondents neither denied the incident of 5th September 2017 nor the conversation with the OCS. The police Occurrence Book corroborated the report and follow-up. Knowledge of the decree was established, and the incident occurred shortly after service, supporting an inference of deliberate defiance.

p. 4

Legal principles established

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  • Contempt proceedings are quasi-criminal and the standard of proof is higher than in ordinary civil cases; the applicant must prove wilful breach
  • Service of the order/decree and penal notice on a party's advocate is sufficient service for contempt liability, and knowledge may be inferred
  • A person who knows of a court order, whether valid or not, cannot disobey it but must apply to court for its discharge

Court orders

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  1. 1.A warrant of arrest to issue to the OCS Malindi Police Station to apprehend the 1st Respondent and Japheth Noti Charo a.k.a Janja and bring them to Court to show cause why they should not be committed to civil jail as prayed under Prayer No. 3 of the Motion dated 27th October 2017

Authorities

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Legislation

  • Penal Code (Penal Notice on Court Orders)null

Cases cited (5)

  • Board of Governors Moi High School Kabarak –vs- Malcom Bell & Another
    Supreme Court Petition No. 6 and 7 of 2013
  • James Gitau Mwara –vs- Attorney General & Another
    (2015) eKLR
  • Shimmers Plaza Ltd Case
  • Bhatnager –vs- Canada (Minister of Employment and Immigration)
    (1990) 2 S.C.R 217
  • Refrigeration and Kitchen Utensils Ltd –vs- Gulabchand Popatlal Shah & Another
    Civil Application No. Nair 39 of 1990
Jurisdiction invoked
Inherent power of the Court to punish for contempt of its orders

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, "Abdulrazak Muhsin Sheriff v Kadzo Masha Kazungu & 2 others [2018] KEELC 248 (KLR)", Case Analysis (2018). Notice of Motion dated 27th October 2017 (suit re: Plot No. 9313 Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/248/eng@2018-12-14

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