Coquero Limited v Bruce Joseph Bockle & 4 others [2018] KEELC 1740 (KLR)
The bottom line
#Kenya's Malindi land court found a landowner in contempt for ignoring orders to vacate, ruling that disobedience is no excuse—even with legal technicalities.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court is divested of jurisdiction because the applicant cited the repealed Section 5 of the Judicature Act rather than the Contempt of Court Act, 2016
No - the application was also brought under Sections 3A and 63(c) of the Civil Procedure Act, which clothe the Court with inherent jurisdiction to punish for contempt despite the defective citation
The Court acknowledged the application was not ideal in form and substance but held that the invocation of Section 3A (inherent powers) and Section 63(c) (power to commit for disobedience of injunction) preserved jurisdiction. The procedural irregularities were not of such substance as to render the application incompetent, as the Court must prevent abuse of its process and ensure the ends of justice are not defeated.
Whether the amended Notice of Motion was incompetent for want of a supporting affidavit
No - the unamended affidavit of Franklyn Pereira sworn on 12th May 2017 remained in support in the court file and the amendment was regularized by the Court's order of 25th July 2017 allowing the application to amend
The original application of 12th May 2017 was supported by Pereira's affidavit, which remained unamended in the file. The purpose of the amendment had been explained in the application dated 22nd June 2017, which was allowed on 25th July 2017. The defect was therefore cured and not fatal to the proceedings.
Whether the 1st Respondent was in willful disobedience of the decree of 23rd/25th September 2013 and the order of 9th December 2015
Yes - the decree clearly required him to demolish constructions, remove his property and cease occupation of the suit land, and he neither complied nor applied to have the orders varied or discharged
The Court held that the decree arising from proceedings in which the 1st Respondent fully participated was clear and unambiguous. His contention that 'the said land' was imprecise was rejected. Relying on Kenya Tea Growers Association v Francis Atwoli, a party cannot excuse disobedience by arguing an order was improperly obtained or too wide; the remedy is variation or discharge, which he never sought. His continued occupation was contempt.
Whether the 5th Respondent advocate was in contempt for authorizing letters to law enforcement agencies tending to obstruct enforcement
No - his letters, though overzealous, were addressed to police officers knowledgeable in law who should have obeyed the orders regardless; the 5th Respondent was not himself in contempt
The Court accepted that the letters dated 27th October 2016, 7th January 2016 and 18th April 2017 were overzealous in protecting the client's interests, at the verge of breaking the law. However, the letters were directed at police officers assumed to be knowledgeable in law, who should have obeyed the court orders regardless. The 2nd to 4th Respondents had also entered a consent. The advocate escaped a contempt finding.
Legal principles established
#- A party who considers a court order improperly obtained or too wide has no excuse for disobeying it; the remedy is to apply to have it varied or discharged
- A person who, knowing of an injunction or stay order, willfully breaks it or causes others to break it is liable to be committed for contempt as he has obstructed justice
- Courts punish contempt to safeguard the rule of law, not the personal dignity of the judiciary or the ego of the presiding judge
Court orders
#- 1.This Honourable Court finds, holds and declares that the 1st Respondent herein is in contempt of the Court's Orders issued on 25th September 2013 and subsequently on 9th December 2015
- 2.The 2nd, 3rd and 4th Respondents are hereby ordered to proceed forthwith to apprehend the said 1st Respondent and to bring him to Court for purposes of passing an appropriate sentence
- 3.The costs of this application shall be to the Plaintiff/Applicant
- Jurisdiction invoked
- Sections 3A and 63(c) of the Civil Procedure Act, Cap 21 (inherent power of the Court to prevent abuse of its process and ensure the ends of justice are not defeated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Coquero Limited v Bruce Joseph Bockle & 4 others [2018] KEELC 1740 (KLR)", Case Analysis (2018). Malindi ELC No. 20 of 2016 (Notice of Motion dated 12th May 2017, as amended 7th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1740/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.