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ELCDismissedNotice of Motion dated 27th March 2018 in Environment and Land Case (suit property LR No. Bukira/Bwisaboka/77)· [2019] KEELC 1287 (KLR)

Joseph Marwa Chacha v Isaya Tatiro Sereria [2019] KEELC 1287 (KLR)

Environment and Land Court
18 September 2019
GOG.M.A. Ongondo
1,375 words in judgment
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The bottom line

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A Kenyan court refused to jail a landowner for contempt because the injunction was never proved served on him and lacked a penal notice.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a notice of motion dated 27th March 2018 in which the plaintiff sought to have the defendant committed to civil jail for disobeying temporary injunction orders issued on 8th November 2017 restraining interference with suit land LR No. Bukira/Bwisaboka/77. The applicant alleged that on 4th March 2018 the respondent entered a portion of the suit land measuring 5.3 acres, cleared bush and began ploughing in preparation for planting maize, despite having been served with the order and despite police advice to desist. The respondent, through a replying affidavit, denied having sold the disputed portion, objected that the application was unsigned contrary to Order 2 Rule 16, and contended that the order was neither extracted nor served, raising the spectre of double jeopardy by reference to Kehancha RM Criminal Case No. 795 of 2014. The court directed that the application be argued by written submissions, in which the applicant relied on Africa Management Communication International Ltd v Joseph Mathenge and the respondent on Sam Nyamweya v Kenya Premier League Ltd. The court rejected the signature objection, finding the application and affidavit duly signed, and confirmed the orders were issued on 25th January 2018. However, applying Nyamogo v Kenya Posts and Telecommunications Corporation and Sam Nyamweya, it found no evidence that the orders had been served on the respondent and noted the absence of an endorsed penal notice. Accordingly, the application was dismissed with costs in the cause.

Key legal issues

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01

Service of injunction orders as a precondition to punishment for contempt

Holding

Punishment for contempt requires proof of service of the order and endorsement of a penal notice; since the orders of 8th November 2017 (issued for service on 25th January 2018) were neither proved to have been served on the respondent nor bore a penal notice, contempt could not be established

Reasoning

The court accepted that the orders were duly issued and extracted through the Deputy Registrar on 25th January 2018 and received by the County Land Registrar, Kuria. However, applying Nyamogo v Kenya Posts and Telecommunications Corporation and Sam Nyamweya v Kenya Premier League Ltd, it held that without evidence of personal service on the respondent and a penal notice endorsed on the order, no contempt could be founded. The application therefore failed.

p. 2
02

Alleged non-signing of the application contrary to Order 2 Rule 16

Holding

Rejected; the application and supporting affidavit were duly signed by the applicant

Reasoning

The respondent argued that the application was not signed contrary to Order 2 Rule 16 of the Civil Procedure Rules. The court found on the face of the record that the application and the supporting affidavit were duly signed by the applicant, disposing of this preliminary objection to the competence of the application.

p. 2

Legal principles established

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  • Before a court can punish for contempt, there must be evidence of service of the order and a penal notice endorsed at the foot of the order of the penal consequences or obligation thereof
  • A party who knows of an order which is null or irregular must apply to court for its discharge and, as long as it exists, should not disobey it

Court orders

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  1. 1.The application dated 27th March 2018 is disallowed/dismissed
  2. 2.Costs be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1(A and B), 3, 3A & 63(e)
  • Constitution of Kenya 2010Article 159
  • Civil Procedure Rules 2010Order 40 Rule 3(1), (2) & 3
  • Civil Procedure Rules 2010Order 51 Rule 16
  • Civil Procedure Rules 2010Order 2 Rule 16
  • High Court (Practice and Procedure) RulesRule 3
  • Judicature ActSection 10
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (6)

  • Africa Management Communication International Limited v Joseph Mathenge and another
    (2013) eKLR
  • Sam Nyamweya and 3 others v Kenya Premier League Ltd and 2 others
    (2015) eKLR
  • Christine Wanjiru Evans and 110 others
    (2014) eKLR
  • Hadkinson v Hadkinson
    (1952) ALL ER 567
  • Chuck v Crement
    (1) 1 COOP TEMP COTT 342
  • Nyamogo v Kenya Posts and Telecommunications Corporation
    (1990-1994) EA 464
Jurisdiction invoked
Sections 1(A and B), 3, 3A & 63(e) of the Civil Procedure Act, Order 40 Rules 3(1), (2) & 3 of the Civil Procedure Rules 2010, Article 159 of the Constitution of Kenya 2010, Section 10 of the Judicature Act (Cap 8)

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 Marwa Chacha v Isaya Tatiro Sereria [2019] KEELC 1287 (KLR)", Case Analysis (2019). Notice of Motion dated 27th March 2018 in Environment and Land Case (suit property LR No. Bukira/Bwisaboka/77). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1287/eng@2019-09-18

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