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ELCPartially AllowedMalindi ELC No. 20 of 2016 (Notice of Motion dated 12th May 2017, as amended 7th June 2017)· [2018] KEELC 1740 (KLR)

Coquero Limited v Bruce Joseph Bockle & 4 others [2018] KEELC 1740 (KLR)

Environment and Land Court
21 September 2018
3,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Coquero Limited, the plaintiff in Malindi ELC No. 20 of 2016, moved the Court by Notice of Motion dated 12th May 2017 (amended 7th June 2017) seeking declarations that the 1st Respondent (Bruce Joseph Bockle), the 5th Respondent (his advocate, Gikandi Ngibuini) and state officers (the County Commissioner Kilifi and two OCSs) were in contempt of orders issued by Tuiyott J on 25th September 2013 and Omollo J on 9th December 2015, and committal to civil jail and/or a fine. The 1st and 5th Respondents raised a preliminary objection contending the application relied on the repealed Section 5 of the Judicature Act and not the Contempt of Court Act 2016, and that the amended Motion lacked a supporting affidavit. The 2nd to 4th Respondents compromised the application by consent on 25th July 2017, undertaking to comply with the 9th December 2015 order. Olola J held that the Court retained inherent jurisdiction under Sections 3A and 63(c) of the Civil Procedure Act despite the defective citation, that the missing affidavit was not fatal, and that the decree was clear and unambiguous. The 1st Respondent's continued occupation of LR No. 491 Section IV, Malindi North was held to be willful contempt; his claim that 'the said land' was ambiguous was rejected, since the remedy for an over-wide order is variation or discharge, which he never sought. The 5th Respondent's overzealous letters to police were not, in themselves, contempt. The application was partially allowed: the 1st Respondent was declared in contempt, the 2nd to 4th Respondents were ordered to apprehend him and bring him to Court for sentencing, and costs were awarded to the Plaintiff.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 4
02

Whether the amended Notice of Motion was incompetent for want of a supporting affidavit

Holding

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

Reasoning

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.

p. 4
03

Whether the 1st Respondent was in willful disobedience of the decree of 23rd/25th September 2013 and the order of 9th December 2015

Holding

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

Reasoning

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.

p. 4
04

Whether the 5th Respondent advocate was in contempt for authorizing letters to law enforcement agencies tending to obstruct enforcement

Holding

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

Reasoning

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

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  • 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

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  1. 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. 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. 3.The costs of this application shall be to the Plaintiff/Applicant

Authorities

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Legislation

  • Judicature Act, Cap 8Section 5
  • Contempt of Court Act, No. 46 of 2016Sections 8, 26(1) and (3), 38
  • Constitution of Kenya, 2010Article 162(2)
  • Civil Procedure Act, Cap 21Sections 3A and 63(c)
  • Supreme Court of England RulesRule 81

Cases cited (6)

  • Kenya Tea Growers Association vs Francis Atwoli and 5 Others
    (2012) eKLR
  • Clarke and Others vs Chadburn & Others
    (1985) 1 All ER 211
  • Econet Wireless Ltd vs Minister for Information & Communication of Kenya & Another
    (2005) eKLR
  • Johnson vs Grant
    1923 SC 789 at 790
  • Teachers Service Commission vs Kenya National Union of Teachers & 2 Others
    (2013) eKLR
  • Mutitika vs Baharini Farm Ltd
    (1985) KLR 229, 234
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

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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, "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.