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ELCDismissedNot stated in the judgment (Notice of Motion dated 28th November, 2018)· [2019] KEELC 3915 (KLR)

Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 3915 (KLR)

Environment and Land Court
22 March 2019
OAO.A. Angote
1,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt case because the party accusing officials of disobeying a court order gave no details of what, when, or how it happened.

What this practically means

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Executive summary

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This was a Notice of Motion dated 28th November, 2018 in which the Plaintiff sought committal to civil jail, for six months or such term as the court determined, of four officials of the 3rd Defendant (its Patron, Chairman, Secretary and Organizing Secretary) and of two Administration Police officers, alternatively attachment and sale of their property, for disobedience of injunctive orders issued on 17th October, 2018 and extended on 25th October, 2018. The orders had restrained the Defendants from harassing, intimidating or threatening the Plaintiff's officials and members and from interfering with the Plaintiff's use and occupation of a portion of L.R. No. 12010 at Kitui Yatta B2 (Katoteni). The Plaintiff contended the orders were served on 22nd October, 2018 and 13th November, 2018, yet the contemnors continued to disobey them, and that the police officers arrested some of its members. The 3rd Defendant responded that no act of disobedience was disclosed, that the Plaintiff's affidavit lacked particulars, that the arrests concerned criminal conduct pending in Kitui Criminal Case No. 1338 of 2018, and that seeking to commit law enforcement officers for performing their duties was an abuse of process. The court found the order had been served, but held that the Plaintiff had not explained how, in what manner or on what date the 3rd Defendant's officials breached it. It further held that the injunction did not shield the Plaintiff's members from criminal liability and that the police retain their constitutional mandate to maintain law and order. The application was dismissed with costs.

Key legal issues

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01

Whether the 3rd Defendant's officials were in contempt of the injunction issued on 17th October, 2018

Holding

The application against them failed for want of evidence of disobedience

Reasoning

The order was served on the 3rd Defendant's officials on 22nd October, 2018, but the Plaintiff's affidavit did not particularise how, in what manner or on what date the officials harassed, intimidated or threatened the Plaintiff or its members. Allegations unsupported by material particulars of the acts complained of cannot sustain a committal, and the application was therefore unmeritorious.

p. 2
02

Whether the arrest and prosecution of the Plaintiff's members by the named Administration Police officers amounted to contempt

Holding

No contempt was established; the police acted within their mandate

Reasoning

The court found that the injunction did not mandate the Plaintiff's members to engage in criminal acts, and that the police remain entitled to investigate and charge any person, including the Plaintiff's members, where an offence is suspected. The annexed charge sheet (including assault charges in Kitui Criminal Case No. 1338 of 2018) had no correlation with the injunctive orders, so the arrests could not constitute disobedience of those orders.

p. 2

Legal principles established

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  • Civil orders of injunction do not immunise persons from criminal investigation and prosecution; police retain their constitutional mandate to maintain law and order notwithstanding such orders.
  • Contempt must be proved by evidence disclosing the acts of disobedience; a party alleging contempt must explain how, in what manner and on what date the disobedience occurred.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 28th November, 2018
  2. 2.Costs of the application to the Defendants/3rd Defendant
Jurisdiction invoked
Inherent powers of the court to punish contempt of its orders (order of temporary injunction issued on 17th October, 2018 in the pending suit)

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, "Mwene Munda Welfare Association v Kitui County Government & 2 others [2019] KEELC 3915 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 28th November, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3915/eng@2019-03-22

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