Joseph Tireito v Jacob Kipsugut Arap Langat & 2 others [2018] KEELC 3364 (KLR)
The bottom line
#An Eldoret court jailed a landowner for repeatedly ignoring a possession order, showing Kenyan courts punish defiance of court orders even during a pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether review under section 80 CPA and Order 45 was available
Review failed; no new matter, error apparent on the face of the record or sufficient reason; the pending appeal is for the Court of Appeal
The applicant sought to revisit the stay orders of 30.9.2014 without any new evidence or facts. Counsel for the respondent correctly argued the applicant was inviting the court to sit on appeal over its own ruling while an appeal was already pending before the Court of Appeal, and the court agreed there was also need to preserve the status quo.
Whether the 2nd defendant was in contempt
Yes; she had never given possession of the 26.5 acres, had been found in contempt before, and had not purged the contempt
The court visited the disputed parcel twice, found it still cultivated and occupied by the 2nd defendant with a building being put up by Mr. Lel, and observed that on the second visit the 2nd respondent attempted to mislead the court by showing a different portion. Her continued occupation amounted to wilful disobedience.
Whether lis pendens applied to Mr. Lel's purchase and construction
Yes; he was presumed aware of the pending proceedings and bound by the court order, but not punishable for contempt
Applying the Judicature Act and the doctrine as stated in Bellamy v Sabine and Mawji v US International University, a purchaser of property in litigation is presumed to know of the suit and is bound by the outcome. Lel ought to have done an official search; however, as he was not a party and unaware of the order, committal could not lie against him.
Whether the trust claim raised for Mr. Lel could succeed
Rejected as an afterthought
M/s Cheso argued that Ann Ngeny held the property in trust for her children. The court found this claim was never brought to the attention of Justice Munyao before he delivered his judgment, and could not be raised at this stage to defeat the orders made.
Legal principles established
#- A person against whom a court order is made must obey it unless and until it is discharged, even if he believes it to be irregular or void
- The doctrine of lis pendens prohibits a party from giving third parties pending litigation rights to property in dispute so as to prejudice the other party
- A purchaser of property actually in litigation pendente lite is bound by the judgment as if he had notice
Court orders
#- 1.Application for review dismissed for lack of merit
- 2.The 2nd defendant, being in contempt for a second time, is jailed for two months or, in the alternative, to pay a fine of Kshs. 200,000
- 3.The 2nd defendant ordered to comply immediately by giving the plaintiff possession as ordered by the court
- 4.Mr. Lel not punished for contempt but is bound by the court order; any further act of construction will amount to disobeying the court order
- 5.The building on the ground to be preserved but no further construction
- 6.Costs of the application to be borne by the 2nd respondent
- On appeal from
- Court of Appeal (appeal pending, not being decided here)
- CACA No. 1 of 2018
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act Cap 21 and Order 45 of the Civil Procedure Rules (review); inherent contempt jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Tireito v Jacob Kipsugut Arap Langat & 2 others [2018] KEELC 3364 (KLR)", Case Analysis (2018). Eldoret Municipality Block 25 (Lulwet)/2 suit - application dated 4th December 2017 (ruling of 30.9.2014 in suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3364/eng@2018-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.