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ELCPartially AllowedNot stated in the judgment (E&L Civil Suit, Nakuru)· [2018] KEELC 4783 (KLR)

Jethro Mwangi Mukundi v John Mureu Kimotho [2018] KEELC 4783 (KLR)

Environment and Land Court of Kenya
30 January 2018
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land owner escaped contempt and title cancellation because the plaintiff couldn't produce the actual 2008 court order allegedly breached.

What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 22nd May 2017 seeking, among other orders, committal of the defendant John Mureu Kimotho to civil jail for contempt of a consent order of 29th April 2008 maintaining status quo over Nakuru/Olongai Phase II/112, alternatively attachment of his property; joinder of Jeniffer Wambui Gitonga, the registered proprietor since 19th August 2011; and cancellation of the title deed issued to her on the ground that the transfer breached the consent order. The defendant denied knowledge of the 2008 order, asserting it was never served on him or his former advocate. The court held that contempt proceedings are quasi-criminal and require proof to a standard higher than a balance of probabilities, including proof of the existence and terms of the order allegedly breached. No extracted order was exhibited, and the handwritten record showed an order was made before Waithaka J on 29th April 2008 but its full wording and meaning could not be ascertained. The contempt and cancellation prayers therefore failed; the Carol Silcock authority relied on by the plaintiff was distinguished because the proprietor there had been served and heard. Joinder of Jeniffer Wambui Gitonga as second defendant was ordered as a necessary party, with leave to file an amended plaint within 14 days. To preserve the property, an inhibition was registered against the suit property pending determination of the suit, with costs in the cause. Judgment delivered at Nakuru on 30th January 2018 by D. O. Ohungo J.

Key legal issues

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01

Whether the defendant was guilty of contempt of the consent order of 29th April 2008

Holding

No finding of contempt; the applicant failed to exhibit an extracted order and the court could not ascertain the order's existence, wording or scope

Reasoning

The court held that contempt is quasi-criminal, requiring a higher standard of proof both as to conduct and, more importantly, as to the existence of the order said to have been disobeyed. The applicant annexed no extracted order; the handwritten record showed an order was made before Waithaka J on 29th April 2008 but its full wording and meaning could not be ascertained. Depriving a litigant of liberty or property on such material was not justified.

p. 4
02

Whether Jeniffer Wambui Gitonga should be joined as a party

Holding

Yes; she is the registered proprietor since 19th August 2011 and the validity of her title would be in issue if the defendant's title is cancelled

Reasoning

Since the transfer to her was effected during the pendency of the suit, and the plaint seeks cancellation of the defendant's title, the validity of her derivative title would necessarily arise. She is therefore a necessary party, and joinder is also in her own interest.

p. 4
03

Whether the title issued to Jeniffer Wambui Gitonga should be cancelled for breach of the consent order

Holding

No; cancellation was refused both for the same evidential difficulties over the order and for want of notice and hearing to the registered proprietor

Reasoning

Apart from the inability to ascertain the 2008 order, the plaintiff offered no evidence of service of the motion on Jeniffer Wambui Gitonga. The authority relied on (Carol Silcock) was distinguishable because the proprietor there was served and participated. However, to preserve the suit property pending trial, an inhibition was ordered, taking into account the plaintiff's occupation.

p. 4

Legal principles established

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  • Contempt proceedings are quasi-criminal and require proof beyond a balance of probabilities, including as to the existence of the order alleged to have been disobeyed
  • A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it
  • A person whose title would be affected must be joined and heard before an order cancelling her title is made

Court orders

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  1. 1.Prayers (c), (d) and (f) of Notice of Motion dated 22nd May 2017 are dismissed
  2. 2.Jeniffer Wambui Gitonga is joined to the suit as second defendant; plaintiff to file and serve an amended plaint within 14 days from delivery of the ruling
  3. 3.An inhibition be registered against Nakuru/Olongai Phase II/112 pending hearing and determination of the suit
  4. 4.Costs in the cause

Authorities

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Legislation

  • Judicature Actsection 5(1)
  • Civil Procedure RulesOrder 40 rule 3

Cases cited (4)

  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
  • Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another
    Civil Application No. 39 of 1990
  • Re Bramblevale Ltd
    [1970] 1 CH 128
  • Carol Silcock v Kassim Sharrif Mohamed
    [2013] eKLR
Jurisdiction invoked
Inherent jurisdiction to punish for contempt, section 5(1) of the Judicature Act, and Order 40 rule 3 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, "Jethro Mwangi Mukundi v John Mureu Kimotho [2018] KEELC 4783 (KLR)", Case Analysis (2018). Not stated in the judgment (E&L Civil Suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4783/eng@2018-01-30

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