John Kundu Khisa v Kennedy Khisa Kundu [2018] KEELC 3551 (KLR)

The court accepted it had previously held the land occupied by the defendant was ascertainable despite renumbering (Plot 50 becoming 53D). However, the orders sought to be executed were more than one year old and no Notice to Show Cause under Order 22 Rule 18 had issued before execution. Although the process could arguably have issued without notice under Order 22 Rule 18(2), where subsequent conduct may lead to contempt proceedings such notice is advisable, and the court had not considered whether notice would cause unreasonable delay or defeat the ends of justice. Serious contempt orders should not issue where procedure was not followed to the letter.

The defendant argued the injunction/order of 11/2/2009 lapsed after 12 months under Order 40 Rule 6, and that Order 22 Rule 18 requiring Notice to Show Cause applied. The court did not explicitly rule on lapse under Order 40 Rule 6, but found the absence of Notice to Show Cause for orders more than one year old to be a genuine ground warranting refusal of the contempt orders sought.

Relying on its earlier Ruling of 13/11/2017 in Kitale ELC No. 152 of 2016, the court reiterated that the defendant was occupying premises subject to the decree in HCCC No. 43 of 2007, later consolidated and renumbered 53D by the Department of Surveys. The defendant produced no maps or documentation proving the plots were distinct. A mere change of plot number could not render the court's order impotent.