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ELCPartially AllowedEldoret Municipality Block 25 (Lulwet)/2 suit - application dated 4th December 2017 (ruling of 30.9.2014 in suit)· [2018] KEELC 3364 (KLR)

Joseph Tireito v Jacob Kipsugut Arap Langat & 2 others [2018] KEELC 3364 (KLR)

High Court of Kenya (Environment and Land jurisdiction), Eldoret
8 May 2018
2,540 words in judgment
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The bottom line

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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

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Executive summary

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Joseph Tireito, the plaintiff, applied by notice of motion dated 4th December 2017 for review of the ruling of 30th September 2014 and subsequent orders to the extent that the stay of execution be lifted; for committal to civil jail of the 2nd respondent, Anna Ngeny, with a fine of Kshs. 200,000; for six months' imprisonment of advocate Stephen Kipyego Lel for contempt; for demolition of structures on the disputed land; and for police security for the bailiff. The plaintiff's case was that despite the order of 30.9.2014 giving him possession of 26.5 acres including 2.5 acres of Eldoret Municipality Block 25 (Lulwet)/2, the 2nd defendant remained in occupation and allowed construction by Mr. Lel, who bought part of the land from the 2nd defendant's son, Joseph Rotich Boit. The 2nd respondent denied service of the order and contempt, said she was ready to surrender 2.5 acres, and attributed the construction to Mr. Lel. Mr. Lel asserted he purchased the property for value. Counsel for the respondent opposed review as lacking new matter and as an attempt to make the court sit on appeal on its own ruling, noting a pending appeal, CACA No. 1 of 2018. The court dismissed the review for want of any new and important matter, error apparent on the record or sufficient reason. Having twice visited the disputed parcel, the court found the 2nd defendant still in occupation and in contempt for a second time, and sentenced her to two months' imprisonment or a fine of Kshs. 200,000, ordering her to give possession immediately. Mr. Lel was bound by the order under the doctrine of lis pendens but could not be punished for contempt as he was not a party and unaware of the order. The building was preserved but no further construction permitted. Costs were awarded against the 2nd respondent.

Key legal issues

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01

Whether review under section 80 CPA and Order 45 was available

Holding

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

Reasoning

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.

p. 2
02

Whether the 2nd defendant was in contempt

Holding

Yes; she had never given possession of the 26.5 acres, had been found in contempt before, and had not purged the contempt

Reasoning

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.

p. 2
03

Whether lis pendens applied to Mr. Lel's purchase and construction

Holding

Yes; he was presumed aware of the pending proceedings and bound by the court order, but not punishable for contempt

Reasoning

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.

p. 2
04

Whether the trust claim raised for Mr. Lel could succeed

Holding

Rejected as an afterthought

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application for review dismissed for lack of merit
  2. 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. 3.The 2nd defendant ordered to comply immediately by giving the plaintiff possession as ordered by the court
  4. 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. 5.The building on the ground to be preserved but no further construction
  6. 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

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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, "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.