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ELCDismissedNot stated in the judgment· [2019] KEELC 1672 (KLR)

Edward Kavai Nzioka & 7 others v Nzioka Mutwanyigi & another [2019] KEELC 1672 (KLR)

Environment and Land Court
26 September 2019
CMC. G. Mbogo
1,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to punish a landowner for contempt because the applicants couldn't prove she was actually served with or aware of the court order.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Environment and Land Court at Makueni by Notice of Motion dated 15th October 2018, seeking to cite the Defendants/Respondents for contempt of orders issued on 17th January 2018, which had restrained interference with land parcel Nzaui/Kawala/472 and related parcels. They also sought an order of restriction against registration of dealings in parcels Nzaui/Kawala/993 and 994, contending that after service of the orders the Defendants subdivided parcel Nzaui/Kawala/170 into parcels 993 and 994 and transferred parcel 472 despite cautions on the titles. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules. The 2nd Defendant/Respondent, Katuti Nzioka, opposed the application by replying affidavit, contending that the subdivision and transfer processes had been completed before the orders were issued, that no caution existed as at 31st January 2018, and that the orders did not bind third parties such as Elizabeth Mwikali Kioko and the Land Registrar who were not parties to the suit. In submissions, the Plaintiffs' counsel relied on authorities establishing that a party who knows of an order, whether null or valid, must obey it until discharged, while the Defendants' counsel relied on authorities requiring proof of personal service or knowledge for a contempt finding. The court held that there was no evidence that the 2nd Defendant was aware of the order of 17th January 2018, no affidavit of service was filed, and the Plaintiffs bore the onus of proving contempt, which they failed to discharge. The application was dismissed with costs to the 2nd Defendant/Respondent.

Key legal issues

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01

Whether contempt of court was established against the 2nd Defendant/Respondent

Holding

Contempt was not established because service or knowledge of the order was not proved; no affidavit of service was filed

Reasoning

The court observed that there was no evidence that the 2nd Defendant/Respondent was aware of the order issued on 17th January 2018, and no affidavit of service was ever filed. There was also a contradiction between the parties as to whether the suit land had been subdivided and transferred before the order issued. The burden of proving contempt lay on the Plaintiffs/Applicants, and they failed to discharge it.

p. 3

Legal principles established

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  • For a party to be punished for contempt, it must be positively established that they were served with the order or had knowledge of it and nonetheless disobeyed it; the burden of proof lies on the applicant

Court orders

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  1. 1.The Plaintiffs'/Applicants' Notice of Motion dated 15th October 2018 is dismissed
  2. 2.Costs of the application awarded to the 2nd Defendant/Respondent
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure 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, "Edward Kavai Nzioka & 7 others v Nzioka Mutwanyigi & another [2019] KEELC 1672 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1672/eng@2019-09-26

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