Jones Mululu Mueke v Simon Mwaniki Kaunga & another [2019] KEELC 1460 (KLR)
The bottom line
#The Machakos Environment and Land Court dismissed a contempt application because the land was subdivided before the injunction was served, and service of court orders is essential.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants were in contempt of the injunction order of 22nd September 2017
Not in contempt, because the sub-division of parcel 601 occurred before the order was issued and served
The 2nd Defendant admitted his advocate was served with the order on 20th July 2018, by which time he had already sub-divided the suit land pursuant to a consent order in Machakos ELC No. 188 of 2016. The title deeds for the sub-plots were issued months before the injunction. Since the alleged acts predated the order, contempt could not be established.
Whether the third parties cited as contemnors could be punished
They could not, as there was no proof of service of the order on them
Some cited contemnors deponed they were never aware of the suit or the orders; Elija Maina Kimani and Julius Kyalo Munyao claimed to be purchasers for value in possession since 1999/2001, and Nicholas Muema Kyembwa had obtained a court order in ELC No. 188 of 2016 directing transfer of his portion. Without evidence of service or knowledge, the court could not interrogate their contempt.
Effect of the consent order of 9th February 2017 in Machakos ELC No. 188 of 2016
The consent order changed the status of the suit land; the 2nd Defendant's non-disclosure of this suit when recording it was designed to defeat the Plaintiff
The 2nd Defendant entered the consent with buyers of the suit land in ELC No. 188 of 2016 without disclosing the existence of this suit. The court held this material non-disclosure was intended to steal a match on the Plaintiff, and the consent altered the status of the land, affecting how the Plaintiff may proceed with the suit.
Legal principles established
#- A person cannot be held in contempt of a court order unless it is established that the order was brought to their notice
- Contempt cannot be founded on acts done before service or issuance of the injunction order
Court orders
#- 1.The Application dated 22nd November 2018 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Inherent powers of the court to punish for disobedience of its orders (contempt); orders issued in the pending suit under the court's injunction jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jones Mululu Mueke v Simon Mwaniki Kaunga & another [2019] KEELC 1460 (KLR)", Case Analysis (2019). Machakos ELC (application arising from suit commenced by Plaint dated 31st July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1460/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.