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ELCPartially AllowedApplication dated 4/11/2016 (suit details not stated in judgment)· [2018] KEELC 4623 (KLR)

Meso Multi-Purpose Society Ltd v Luore Nyairo Company Ltd & 3 others [2018] KEELC 4623 (KLR)

High Court of Kenya
16 January 2018
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court convicted a co-operative chairman for ignoring a land court order, ruling that you must obey court orders until they are set aside, even if you believe they are invalid.

What this practically means

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Executive summary

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This is a ruling on a contempt-of-court application dated 4/11/2016 brought by the 1st defendant, seeking the committal to civil jail of the Chairman, Secretary and Treasurer of the plaintiff for willfully disobeying status quo orders made on 17/12/2009. The application was supported by affidavits of Barry Odongo Okundi (agent), Stephen Kariuki Njoroge (lessee of 100 acres) and Joseph Elila (caretaker), alleging that from early 2016 the plaintiff's members, numbering over 50 and armed with crude weapons, invaded the suit land, overpowered police, halted ploughing, and began subdividing, planting and erecting structures. A process server proved service of the Chairman and Secretary on 10/3/2016 but not of the Treasurer. The plaintiff's Chairman, Francis Wafula Nyongesa, replied through three affidavits asserting occupation since 1989 and challenging the validity and service of the orders and the applicability of the Contempt of Court Act 2016. The court, per Mwangi Njoroge J, found from its own ruling of 11/7/2016 that the plaintiff was not in occupation of the 250 acres at the time of the orders, rendering the Chairman's assertions false. It held the Contempt of Court Act, commencing 13/1/2017, did not apply retrospectively, and that a court order must be obeyed until set aside regardless of claimed invalidity. The Chairman was convicted of willful contempt and ordered to appear for sentencing on 30/1/2018; the prayers against the Secretary and Treasurer were dismissed; the Chairman was ordered to personally pay the costs of the application.

Key legal issues

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01

Disobedience of court orders despite claimed invalidity

Holding

Belief in the invalidity of an order is no defence to contempt; the order binds until set aside

Reasoning

The court held that conduct contrary to a court order constitutes contempt where the alleged contemnor was served or had knowledge. It is irrelevant that the contemnor believes the order invalid or irregular; his responsibility was to comply pending setting aside. The Chairman's affidavits demonstrated both knowledge of the orders and a readiness to disobey them, justifying conviction.

p. 3
02

Retrospective application of the Contempt of Court Act 2016

Holding

The Act, having commenced on 13th January 2017, does not apply to conduct and applications predating its commencement

Reasoning

The court noted the matters complained of and the application itself preceded the commencement of the Contempt of Court Act (13/1/2017), and the respondents submitted no basis for retrospective application. The contempt jurisdiction was therefore exercised independently of the Act.

p. 3
03

Proof of service and knowledge against each alleged contemnor

Holding

Only the Chairman was proved to have knowledge of the orders; the Treasurer was never served and contempt was not proved against the Secretary or Treasurer

Reasoning

The process server's affidavit confirmed service of the Chairman and Secretary on 10/3/2016, but no evidence of service on the Treasurer. The Chairman's own affidavits admitted knowledge of the orders. The court distinguished between the three alleged contemnors, convicting only the Chairman whose conduct and sworn statements demonstrated willful disobedience.

p. 2
04

Truth of the plaintiff's claim of occupation since 1989

Holding

The court found, on the record including its own ruling of 11/7/2016, that the plaintiff was not in occupation of the 250 acres as at 17/12/2009 and the Chairman's allegations of occupation were false

Reasoning

The court consulted its ruling of 11/7/2016, which recorded the executive officer's report that the 250 acres were occupied by the defendant as at the date of the status quo orders. This contradicted the Chairman's sworn assertions of occupation since 1989, undermining his credibility and supporting the inference that his conduct encouraged the invasion of the land.

p. 3

Legal principles established

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  • A court order must be obeyed until set aside, regardless of a party's belief as to its validity, provided the party was served with or had knowledge of it

Court orders

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  1. 1.The Chairman of the plaintiff, Francis Wafula Nyongesa, is convicted of the offence of contempt of court for willfully disobeying the court orders and ordered to personally appear in court on 30th January 2018 for sentencing
  2. 2.The prayers against the other alleged contemnors (the Secretary, Patrick Simiyu Mumia, and the Treasurer, Justus Wanyama) are dismissed
  3. 3.Francis Wafula Nyongesa shall personally pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 6
  • Contempt of Court ActSection 34; No. 46 of 2016
Jurisdiction invoked
Inherent power of the High Court to punish for contempt of its own orders (Contempt of Court Act No. 46 of 2016 considered but held not retrospective)

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, "Meso Multi-Purpose Society Ltd v Luore Nyairo Company Ltd & 3 others [2018] KEELC 4623 (KLR)", Case Analysis (2018). Application dated 4/11/2016 (suit details not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4623/eng@2018-01-16

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