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ELCPartially AllowedNot stated in the judgment (civil suit commenced by Plaint filed 1st March 2017; application by Notice of Motion dated 27th March 2018)· [2018] KEELC 795 (KLR)

Purity Muthoni Plein v County Government of Laikipia & another [2018] KEELC 795 (KLR)

Environment and Land Court
19 November 2018
4,077 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court fined a developer Kshs. 100,000 for ignoring a court order, confirming that knowing about an order is enough to punish you for defying it.

What this practically means

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Executive summary

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This was a first-instance contempt application before the Environment and Land Court at Nyahururu (M.C. Oundo, Judge). The Plaintiff, owner of Nyahururu Municipality Block 8/2036 (a medium density zone), sued the 1st Defendant, a County Government of Laikipia official, over approval of high density construction on adjacent plots Block 8/1005-445. Ex-parte interim orders issued on 2nd May 2017 restraining approval of high density plans and interference with the designated use of the plots, and later orders directed that there be no construction on the suit land. The 2nd Defendant, the allottee upon whom construction was proceeding, was later enjoined. The Notice of Motion dated 27th March 2018 under Order 40 Rule 3 CPR, Sections 1A and 3A of the Civil Procedure Act, sought the detention of both Respondents for up to six months for contempt. The court framed four issues: competence of the application, validity of the order, service/knowledge, and contempt. It held the application was properly brought under Order 40 (distinguishing the Judicature Act route), that the order was valid and undisputed, and - following Shimmers Plaza and Basil Criticos - that knowledge of the order dispensed with personal service. The 1st Defendant was discharged for want of evidence of disobedience; the 2nd Defendant was found to have wilfully defied the order by continuing construction and was fined Kshs. 100,000/-, in default two months in civil jail, effective immediately. The application therefore succeeded only against the 2nd Defendant.

Key legal issues

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01

Whether the contempt application was brought under the correct legal provisions

Holding

The application under Order 40 Rule 3(1) CPR was proper because the orders alleged to have been breached were in the nature of an injunction; Section 5 of the Judicature Act was not the applicable route.

Reasoning

The Plaintiff invoked Order 40 of the Civil Procedure Rules. The court distinguished Republic vs County Council of Nakuru Ex-Parte Edward Alera, where the order breached was not an injunction and Section 5 of the Judicature Act therefore applied. Because the 2nd May 2017 orders restrained interference with the designated use of the suit plots pending an injunction application, Order 40 was the correct procedural basis and the application was properly before the court.

p. 5
02

Whether a valid court order existed as of 2nd May 2017

Holding

Yes - the ex-parte interim orders of 2nd May 2017 restraining interference with the designated use of the suit plots were valid and neither party disputed their validity.

Reasoning

The court reproduced the ex-parte interim order issued on 2nd May 2017 restraining the defendant, its servants, agents or employees from receiving and approving high density buildings and/or architectural plans or interfering with the designated use of plots Nyahururu Municipality Block 8/1005-445. Since both parties accepted the existence and validity of that order, the issue did not require further analysis and 'rests'.

p. 5
03

Whether personal service of the order was required before contempt could be found

Holding

Personal service was unnecessary because both Respondents had knowledge of the order; the 1st Respondent received it and wrote to the 2nd Respondent instructing him to stop construction.

Reasoning

The court followed Shimmers Plaza Ltd v NBK, which approved Basil Criticos, holding that knowledge of a court order suffices for contempt and dispenses with personal service. The 1st Respondent did not deny receipt of the order and in turn wrote to the 2nd Respondent forwarding a copy and instructing him to stop construction; receipt of that letter was not denied. Accordingly, the requirement of personal service was rendered unnecessary in the circumstances.

p. 5
04

Whether the Respondents were guilty of contempt of the 2nd May 2017 order

Holding

The 2nd Defendant was guilty of wilful and intentional defiance of the order and was punished by a fine; the 1st Defendant was discharged for want of evidence of disobedience.

Reasoning

Applying the Stewart Robertson standard of wilful defiance and the Hadkinson obligation to obey court orders, the court found the 2nd Defendant continued construction on the suit land despite service of the order and penal notice, contrary to the restraint orders. As against the 1st Defendant, however, although served, no tangible evidence demonstrated disobedience, so he was discharged. The court stressed the need to be firm on those who deliberately disobey court orders.

p. 5

Legal principles established

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  • Knowledge of a court order suffices to prove service for purposes of contempt proceedings; personal service is not indispensable.
  • Where a person against whom a court order is made has knowledge of it, the strict requirement of personal service is rendered unnecessary.
  • There is an unqualified obligation to obey a court order even where the person affected believes it to be irregular or void.
  • An application for injunction under Order 40 of the Civil Procedure Rules is the proper vehicle where the order disobeyed is an injunction; Section 5 of the Judicature Act applies to orders not in the nature of an injunction.
  • Contempt of court is constituted by wilful defiance of or disrespect towards the court or its authority, whether in civil or criminal proceedings.
  • On proof of disobedience of an injunction, the court may order attachment of the disobeying party's property and detention in prison for up to six months.

Court orders

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  1. 1.The application dated 27th March 2018 allowed as against the 2nd Defendant/Respondent only.
  2. 2.The 2nd Defendant/Respondent found guilty of contempt of the court orders of 2nd May 2017 and punished for contempt.
  3. 3.The 2nd Defendant/Respondent condemned to pay a fine of Kshs. 100,000/- in default to serve a term of 2 months in civil jail, effective immediately.
  4. 4.The 1st Defendant/Respondent discharged (application against him dismissed).

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1) and (2)
  • Civil Procedure ActSections 1A and 3A
  • Judicature ActSection 5
  • Contempt of Court ActNot specified

Cases cited (14)

  • Sam Nyamweya & 3 Others vs Kenya Premier League & 2 Others
    [2015] eKLR
  • Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & Another
    CA 24/2014 Nyeri
  • Shimmers Plaza Ltd Vs NBK
    (2015) eKLR
  • Basil Criticos Vs Attorney General & 8 Others
    (2012) eKLR
  • Stewart Robertson vs Her Majesty's Advocate
    2007 HCAC63
  • North Tetu Farmers Co. ltd vs Joseph Nderitu Wanjohi
    [2016] eKLR
  • Africa Management Communication International Ltd vs Joseph Mathenge Mugo & Another
    [2013] eKLR
  • Ramadhan Salim vs Evans M. Maabi T/A Murphy Auctioneers & Another
    [2016] eKLR
  • Kyoga Haulier Ltd vs Long Distance Truck Driver & Allied Workers Union
    [2015] eKLR
  • Duncan Manuel Mungai vs Kenya Railway cooperation
    Misc Application No. 275 of 2007
  • ECONET Wireless Ltd vs Minister for Information & Communication of Kenya & Another
    [2005] eKLR
  • Republic vs County Council of Nakuru Ex-Parte Edward Alera t/a Genesis Reliable Equipment & 2 others
    [2011] eKLR
  • Hadkinson vs Hadkinson
    (1952) ALL ER 567
  • Johnson Vs Grant
    (1923) SC 789 at 790
Jurisdiction invoked
Order 40 Rule 3 of the Civil Procedure Rules; Sections 1A and 3A of the Civil Procedure Act (contempt of court application, first instance)

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, "Purity Muthoni Plein v County Government of Laikipia & another [2018] KEELC 795 (KLR)", Case Analysis (2018). Not stated in the judgment (civil suit commenced by Plaint filed 1st March 2017; application by Notice of Motion dated 27th March 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/795/eng@2018-11-19

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