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ELCPartially AllowedNotice of Motion dated 2nd October 2017 (appeal from Gichugu court - number not stated in judgment)· [2019] KEELC 2818 (KLR)

Benson Muriuki Kibata v Gikiri Francis Gikiri & another; Joseph M. Gichoya (Interested Party) [2019] KEELC 2818 (KLR)

Environment and Land Court
14 June 2019
ECE. C. Cherono
1,634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court fined two men Ksh. 100,000 each for ignoring an injunction protecting a land parcel, ruling that injunctions also bind agents.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 2nd October 2017 in an appeal before the Environment and Land Court, in which the appellant/applicant sought to have the 2nd respondent (Gikiri Njoroge) and a 3rd party (Joseph M. Gichoya) cited for contempt of the court's orders of 16th June 2017, which had granted a permanent injunction restraining the respondents from trespassing on or interfering with the appellant's quiet possession of land parcel BARAGWI/THUMAITA/2813. The applicant also sought assessment of damages, an order compelling the police to enforce compliance, and costs. The 3rd party deponed he had purchased and occupied the land in 2005, was never enjoined, and was never served with the orders. The 2nd respondent opposed the application, arguing the Contempt of Court Act had been declared unconstitutional, that the name cited did not refer to him, that he was not in possession, and that prayer 3 introduced a new cause of action. The court, applying Section 63(c) of the Civil Procedure Act and the authorities in Shimmers Plaza and Kitsuri, held that injunction orders bind the respondents' agents and servants; since the respondents themselves put the 3rd party in possession, the orders bound him. Finding the trespass uncontroverted and proved to the criminal standard required in contempt proceedings, the court cited both the 2nd respondent and the 3rd party for contempt and fined each Ksh. 100,000, in default six months' imprisonment each, with costs to the respondents. No orders were made on damages or police enforcement.

Key legal issues

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01

Whether contempt of the orders of 16th June 2017 was proved against the 2nd respondent and 3rd party

Holding

Yes - contempt proved to the required standard against both; they were cited for contempt and fined Ksh. 100,000 each, in default six months' jail each

Reasoning

The court relied on its own order of 16th June 2017 issuing a permanent injunction against trespass on BARAGWI/THUMAITA/2813. The 2nd respondent's own supporting affidavit admitted that the 3rd party, whom the respondents put in possession, was on the land. The applicant's affidavit gave uncontroverted instances of trespass. Applying the criminal standard of proof for contempt, the court was satisfied the breach was proved.

p. 3
02

Whether the 3rd party, not formally enjoined, is bound by the injunction

Holding

Yes - as an agent of the respondents, he is bound by the orders which bind their agents and servants

Reasoning

The court found the 3rd party was an agent placed in the suit property by the respondents, as pleaded in the respondents' own Notice of Motion dated 7th August 2017 and admitted in Gikiri Njoroge's affidavit. Since injunction orders bind the respondents' agents and servants, the permanent injunction extended to the 3rd party notwithstanding his claim to be a stranger to the proceedings.

p. 3

Legal principles established

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  • Court orders must be obeyed and those who flagrantly disobey them must be punished
  • Contempt must be proved beyond reasonable doubt, a standard higher than in civil cases, including that the breach was deliberate or willful
  • Injunction orders bind not only the parties but also their agents and servants

Court orders

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  1. 1.The 2nd respondent (Gikiri Njoroge) and the 3rd party (Joseph M. Gichoya) are cited for contempt of the orders of 16th June 2017
  2. 2.Each of the two is to pay a fine of Ksh. 100,000/= failing which they shall be jailed for six (6) months each
  3. 3.The respondents shall pay the costs of the case

Authorities

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Legislation

  • Civil Procedure ActOrder 1 Rule 15; Section 1A(1)(b); Section 63(c)
  • Constitution of KenyaArticle 10(2); Article 159
  • Contempt of Court Act No. 49 of 2016Sections 4 and 5

Cases cited (3)

  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    (2015) eKLR
  • Kitsuri Limited vs Kuparchand Depar Shal
    (2006) eKLR
  • Peter K. Yego & another vs Pauline Nekesa Kode
On appeal from
Lower court (Gichugu)
Jurisdiction invoked
Order 1 Rule 15 Section 1A (B) Civil Procedure Act, Article 10(2) and 159 of the Constitution, Section 4 and 5 of the Contempt of Court Act No. 49 of 2016, Section 63(c) Civil Procedure 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, "Benson Muriuki Kibata v Gikiri Francis Gikiri & another; Joseph M. Gichoya (Interested Party) [2019] KEELC 2818 (KLR)", Case Analysis (2019). Notice of Motion dated 2nd October 2017 (appeal from Gichugu court - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2818/eng@2019-06-14

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