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ELCOtherNotice of Motion dated 2nd August, 2017· [2019] KEELC 2107 (KLR)

Maureen Wangui Kamande & 4 others v Nicholas Mwaniki Waweru t/a Mambo Moto Media & 2 others;Esther Moraa Mombo & 2 others (Interested Parties) [2019] KEELC 2107 (KLR)

Environment and Land Court
31 July 2019
2,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court held that having a lawyer in court counts as knowing a court order, and disobedience can lead to fines and civil jail.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado (Christine Ochieng, J) on a Notice of Motion dated 2nd August 2017 in which the Plaintiffs sought orders that Nicholas Mwaniki Waweru, Samuel Gathuku Kimori and Anne Gatwiri Gathuku, directors of the 2nd Defendant, be committed to civil jail for six months for disobeying orders issued on 30th June 2017 and extracted on 3rd July 2017, which required deposit of Kshs. 6,820,000/=. The 1st Respondent denied the existence of an order dated 30th June 2017, challenged service on the ground that the process server allegedly served Triple OK Law rather than his advocates of record, and contended the application was premature. The 2nd and 3rd Respondents denied personal service, asserted partial compliance, and complained that the order did not specify each Respondent's share. Relying on Maisha Nishike Ltd v Commissioner of Lands (citing Kalyasoi Farmers), Shimmers Plaza Ltd v National Bank of Kenya and Njenga Mwangi Wahira, the court held that representation by counsel suffices as notice of an order and that the Respondents, whose counsel appeared repeatedly after the ruling seeking directions on apportionment and the deposit account, could not claim ignorance. Their claimed appeal and review were not on record. The court found the application merited but did not effect immediate committal: it directed the Respondents to deposit Kshs. 6,820,000/= into the agreed joint account within 30 days, failing which they would pay a fine of Kshs. 100,000 each, and in default of the fine, the 1st, 3rd and 4th Respondents would be committed to civil jail for one month. The Applicants were awarded costs of the application.

Key legal issues

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01

Whether the Respondents, who were represented by counsel, had knowledge of the order of 30th June 2017 so as to be liable for contempt

Holding

Representation by counsel constituted notice of the order; the Respondents' counsel appeared severally after the order seeking directions on apportionment and the bank account, so they could not claim ignorance

Reasoning

The court found the ruling of 30th June 2017 was delivered in the presence of the Applicants' counsel, and although the Respondents' counsel were absent, they had participated in the underlying application. The firm Ochieng, Onyango, Kibet & Ohaga Advocates is also known as TRIPLEOK LAW, undermining the service objection. Counsel appeared repeatedly after the order, showing knowledge of its terms.

p. 3
02

Whether the Respondents' failure to comply was wilful given their claims of seeking appeal and review and the ambiguity as to each Respondent's share

Holding

The court found the application merited but allowed time to comply, with contempt sanctions taking effect only upon continued default

Reasoning

The Respondents claimed to have lodged an appeal and sought review, but no Memorandum of Appeal was on record and no review had been granted. Their lawyers had sought directions on apportionment and agreed on the bank account, so they could not plead ignorance. Nevertheless, the court structured the orders to give a final 30-day window to deposit the funds before committal sanctions applied.

p. 3

Legal principles established

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  • It is the plain and unqualified obligation of every person against whom a court order is made to obey it unless and until it is discharged, even where the person believes the order to be irregular or void
  • Notice of a court order is satisfied where the person was represented in court by counsel, and once notice is proved the respondent bears the evidential burden on wilfulness and mala fides
  • Court orders are sacrosanct and must be obeyed even if a party believes they were not properly issued

Court orders

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  1. 1.The Respondents to deposit the sum of Kshs. 6,820,000/= in the joint account already agreed upon within 30 days from the date of the ruling
  2. 2.Failure to deposit, the Respondents to be cited for contempt and directed to pay a fine of Kshs. 100,000 each
  3. 3.In default of the fine, the 1st, 3rd and 4th Respondents to be committed to civil jail for one (1) month
  4. 4.The Applicants awarded the costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 10
  • Contempt of Court ActSections 4(a), 5, 28(1), 29
  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40 Rule 3
  • Environment and Land Court ActSection 29

Cases cited (14)

  • Bob Collymore & Another v Cyprian Nyakundi
    (2016) eKLR
  • Adetoun Oladeji (Nig) Ltd v Nigeria Breweries PLC
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    (2014) eKLR
  • Sam Nyamweya & 3 others v Kenya Premier League Limited & 2 Others
    (2015) eKLR
  • Africa Management Communication International Limited v Joseph Mathenge Mugo & another
    (2013) eKLR
  • Alken Connections Limited v Safaricom Limited
  • Beatrice Wanjiku & Another v Attorney General
    Petition 190 of 2011
  • Re Zipporah Wambui Mathara
    (2010) eKLR
  • Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka
    (2018) eKLR
  • Njenga Mwangi Wahira and Partners v County Secretary & Another
    (2018) eKLR
  • Maisha Nishike Ltd v Commissioner of Lands & 3 others
    (2011) eKLR
  • Kalyasoi Farmers Cooperative Society & others v County Council of Narok
  • Shimmers Plaza Limited v National Bank of Kenya Ltd
    (2015) eKLR
  • Johnson v Grant
    (1923) SC 789 at 790
Jurisdiction invoked
Article 10 of the Constitution; Sections 4(a), 5, 28(1) and 29 of the Contempt of Court Act 2016; Section 63 of the Civil Procedure Act; Order 40 Rule 3 of the Civil Procedure Rules; Section 29 of the Environment and Land Court Act

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, "Maureen Wangui Kamande & 4 others v Nicholas Mwaniki Waweru t/a Mambo Moto Media & 2 others;Esther Moraa Mombo & 2 others (Interested Parties) [2019] KEELC 2107 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd August, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2107/eng@2019-07-31

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