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ELCPartially AllowedApplication dated 3rd November 2017 in Eldoret ELC suit (related to Eldoret ELC No. 492 of 2013)· [2019] KEELC 2003 (KLR)

Boniface Odero Simani v Herman Shibiti & 3 others [2019] KEELC 2003 (KLR)

Environment and Land Court
9 August 2019
1,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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An Eldoret court jailed a landowner for demolishing structures in breach of a court order, confirming you must obey court orders even if you doubt them.

What this practically means

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Executive summary

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The 2nd defendant/applicant, through Enock Musiega Munyeti, brought a notice of motion dated 3rd November 2017 seeking committal to jail of the plaintiff/respondent, and of Robert Onduko Omenge and Paul Mwangi of Saddabri Auctioneers, for disobeying orders made on 30th June 2014. Those orders maintained the status quo on land parcel Eldoret Municipality Block 21 (King'ong'o)/4697, allowed the 2nd defendant to continue utilising the land, and prohibited the plaintiff from interfering with the 2nd defendant's possession. The applicant alleged that on 1st November 2017 the plaintiff, accompanied by hired men, demolished the fence, ablution block and other structures on the suit property, and annexed photographs and a caretaker's affidavit. The respondent denied knowledge of the order, asserting he was served only on 3rd November 2017, and denied any structures existed on the land. The court framed three issues: whether there was a court order, whether it was served or known, and whether it was disobeyed. It found the order existed and that the plaintiff was deemed aware of it because the ruling was delivered in the presence of his counsel. Accepting the caretaker's unchallenged evidence, the photographs and a 2014 valuation report, and noting a 2019 site visit by the County Land Registrar confirming the structures were gone, the court held the order was breached. Relying on section 5(1) of the Judicature Act, section 63(c) of the Civil Procedure Act and the Econet Wireless and TSC v KNUT authorities, the court found the plaintiff in contempt and sentenced him to two months' imprisonment with an option of a fine of Kshs. 100,000.

Key legal issues

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01

Existence and knowledge of the court order

Holding

A valid order was made on 30th June 2014 and the plaintiff was deemed aware of it because his counsel was present when the ruling was delivered.

Reasoning

The order of 30th June 2014 prohibited the plaintiff from interfering with the 2nd defendant's possession of the suit land. The ruling was delivered in the presence of counsel for both parties, so personal service on the plaintiff was unnecessary; he was deemed aware of the order despite his claim that he learned of it only on 3rd November 2017 when served.

p. 2
02

Breach of the order

Holding

The plaintiff supervised the demolition of the semi-permanent house, ablution block and fence on the suit property, breaching the status quo order.

Reasoning

The caretaker Mr. Khatete gave cogent, unchallenged evidence that the plaintiff sent two men who destroyed the structures and that the plaintiff was on site during the destruction. Photographs and a 2014 valuation report established what structures existed; a later site visit by the Land Registrar confirmed the structures were demolished.

p. 2
03

Power to punish for contempt and appropriate sentence

Holding

The ELC, like the High Court, has power under section 5(1) of the Judicature Act to punish for contempt; the plaintiff was sentenced to 2 months' imprisonment with an option of a Kshs. 100,000 fine.

Reasoning

Relying on section 5(1) of the Judicature Act, section 63(c) of the Civil Procedure Act, and the Econet Wireless and TSC v KNUT authorities on the rule-of-law rationale for contempt, the court held it possessed the power to punish for contempt and that the applicant had proved the contempt to the required standard.

p. 3

Legal principles established

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  • Every person against whom a court order is made must obey it unless and until it is discharged, even where they believe it to be irregular or void.
  • A court of equal status to the High Court (ELC) has power to punish for contempt under section 5(1) of the Judicature Act.
  • Counsel's presence at delivery of a ruling deems a party aware of the order even without personal service.

Court orders

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  1. 1.The plaintiff is imprisoned for 2 months in jail with an option of a fine of Kshs. 100,000

Authorities

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Legislation

  • Judicature Actsection 5(1)
  • Civil Procedure Actsection 63(c)

Cases cited (2)

  • Econet Wireless Kenya Limited v Minister for Information & Communication of Kenya & Another
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    (2013) eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act and section 63(c) of the Civil Procedure Act - power of the court to punish for contempt

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, "Boniface Odero Simani v Herman Shibiti & 3 others [2019] KEELC 2003 (KLR)", Case Analysis (2019). Application dated 3rd November 2017 in Eldoret ELC suit (related to Eldoret ELC No. 492 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2003/eng@2019-08-09

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