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ELCDismissedNotice of Motion dated 15th March 2017 (in an appeal from PMCC No. 282 of 2010)· [2018] KEELC 2245 (KLR)

Kilonzo Wambua & Nicholas Maundu v Mosoi P. Parkut [2018] KEELC 2245 (KLR)

High Court of Kenya
30 July 2018
COChristine Ochieng
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Kajiado refused to jail a landowner for breaking a court order because the applicants could not prove the breach with specific, convincing evidence.

What this practically means

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Executive summary

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The Appellants moved the High Court at Kajiado by Notice of Motion dated 15th March 2017, brought under Section 5 of the Judicature Act, Order 52 rule 2(2) of the Rules of the Supreme Court of England, the Civil Procedure Act and Order 40 rule 4 of the Civil Procedure Rules, seeking committal of the Respondent, Mosoi Parkut, to prison for six months for contempt of consent orders recorded on 17th March 2016. Those orders, pending the hearing of an appeal from PMCC No. 282 of 2010, restrained the Respondent from interfering with the Appellants' quiet possession and occupation of sixteen acres comprised in land parcel Kajiado/Kaputiei Central/677. The Appellants alleged that despite personal service, the Respondent carried out soil harvesting, blocked access, and harassed and trespassed on the suit land. The Respondent denied wilful disobedience, contending the allegations were wild, unspecified as to dates and times, and unsubstantiated. The court framed a single issue: whether the Respondent was in contempt of the order of 17th March 2016. It found the order's terms and service undisputed, but held that contempt proceedings are criminal in nature and the burden of proof lies on the Appellants to a standard higher than in ordinary civil cases. The photographs of excavation could not establish which portion of the expansive land was affected, and no period of the alleged contempt was indicated. Relying on Section 29 of the Contempt of Court Act and cited authorities, the court declined to find the Respondent in contempt, dismissed the application, directed the Appellants to set the appeal down for hearing, and ordered costs in the cause.

Key legal issues

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01

Whether the Respondent was in contempt of the consent order of 17th March 2016

Holding

The Respondent was not found in contempt as the Appellants failed to prove the alleged breach to the required standard

Reasoning

The order was made by consent and personally served, so its terms and the Respondent's knowledge were undisputed. However, contempt proceedings are criminal in nature and the burden lies on the Appellants to a standard higher than in ordinary civil cases. The Appellants did not specify when the alleged acts occurred, and photographs of excavation could not show which portion of the expansive land was affected. The court therefore could not decipher what the Respondent had interfered with.

p. 2

Legal principles established

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  • A person against whom a court order is made has an unqualified obligation to obey it unless and until it is discharged, even if he believes it to be irregular or void
  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order; knowledge or notice of the terms; breach of the terms; and deliberate conduct

Court orders

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  1. 1.The Notice of Motion application dated 15th March 2017 is declined/dismissed
  2. 2.The Appellants are directed to set their Appeal down for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Judicature ActSection 5
  • Rules of the Supreme Court of EnglandOrder 52 rule 2(2)
  • Civil Procedure ActSections 1, 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 40 rule 4
  • Contempt of Court ActSection 27(b)
  • Contempt of Court ActSection 28(1)
  • Contempt of Court ActSection 29(1)

Cases cited (3)

  • Maisha Nishike Ltd vs. Commissioner of Lands & 3 others
    (2011) eKLR
  • Kalyasoi Farmers Cooperative Society & others Vs County Council of Narok
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
On appeal from
Principal Magistrate's Court
PMCC No. 282 of 2010
Jurisdiction invoked
Section 5 of the Judicature Act; Order 52 rule 2(2) of the Rules of the Supreme Court of England; Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 40 rule 4 of the Civil Procedure Rules

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, "Kilonzo Wambua & Nicholas Maundu v Mosoi P. Parkut [2018] KEELC 2245 (KLR)", Case Analysis (2018). Notice of Motion dated 15th March 2017 (in an appeal from PMCC No. 282 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2245/eng@2018-07-30

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