Jeremiah Matoke v Kenya Commercial Bank Ltd & another [2019] KEELC 3519 (KLR)
The bottom line
#A Kenyan land court found a defendant in contempt for ignoring a land transfer order, ordered the transfer executed anyway, and summoned him for punishment.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd defendant was in contempt of the orders issued on 28/11/2018 pursuant to the judgment of 15/11/2018
Yes. The 2nd defendant admitted knowledge of the orders and admitted non-compliance, and the court found his explanations for non-compliance implausible.
The court applied the two-limb test for contempt: awareness of the order and failure, neglect or refusal to comply. The 2nd defendant admitted both knowledge and non-compliance in his replying affidavit. His excuse of ongoing compliance with the Kitale SPM Land Case No. 50 of 2002 decree was unsupported by credible evidence - the area list bore no signature or date and the subdivision plan no surveyor's endorsement - and no application for incapacity was made within the 3-month compliance period.
Whether the 2nd defendant's reliance on the decree in Kitale SPM Land Case No. 50 of 2002 excused non-compliance
No. The excuse was dismissed as a smoke screen; the superior court's orders must take precedence.
The court found the alleged implementation of the subordinate court decree unsubstantiated: no instructions to advocates, no correspondence with a surveyor, unsigned documents and no timelines. The parties dealt with in the lower court differed from those before the superior court. The court held the superior court judgment of 15/11/2018 must be implemented before any attempt to implement the lower court decree.
Whether the 1st defendant was culpable
No. The 1st defendant had released discharge of charge forms and the original title deed to the 2nd defendant and had no further interest in the security.
The 1st defendant's Branch Manager deponed that the loan had been repaid, discharge of charge forms signed and released with the original title, and that the specific performance order of 28/11/2018 recognized this release. The 2nd defendant did not deny this. The court found the delay attributable solely to the 2nd defendant's conduct.
Legal principles established
#- The ingredients for a finding of contempt are proof that the alleged contemnor was aware of the court order and that he failed, neglected or refused to comply with it.
- A litigant may not hide behind alleged compliance with a subordinate court's decree to escape compliance with an order of a superior court.
- Where a litigant claims inability to comply, the excuse must be supported by credible, probative evidence and raised within the compliance period.
Court orders
#- 1.The application dated 5/3/2019 is granted in terms of prayer No. (3): the Deputy Registrar of the court is allowed to sign and execute all documents necessary to cause the transfer of the decreed 10 acres of land comprised in Deed Plan No. 238375 and issued with LR. No. 7847/7
- 2.Prayer No. (4) granted: the Chief Land Registrar to proceed with the registration and transfer of 10 acres comprised in Deed Plan No. 238375 issued with LR No. 7847/7 to the plaintiff forthwith
- 3.Implementation of the orders made in the superior court judgment dated 15/11/2018 shall precede all other attempts to implement the decree in Kitale SPM Land Case No. 50 of 2002
- 4.The 2nd defendant to appear before the court on 13th May 2019 at 12:30 pm to be punished for contempt of court, in default of which warrants of arrest shall automatically issue against him
- Jurisdiction invoked
- Inherent powers of the superior court to enforce its own orders and punish for contempt; orders issued in its judgment dated 15/11/2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Matoke v Kenya Commercial Bank Ltd & another [2019] KEELC 3519 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3519/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.