Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC No. 782 of 2017 (formerly at Migori)· [2019] KEELC 4677 (KLR)

Janet Akinyi Ating’a & another v Hilda Linet Achieng & 3 others [2019] KEELC 4677 (KLR)

Environment and Land Court of Kenya
15 January 2019
GOG. M. A. Ongondo
2,441 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

#

A Kenyan court refused to punish parties for ignoring a land order because there was no proof they were actually served with it.

What this practically means

#

Executive summary

#
The applicants, plaintiffs in a land dispute over KAMAGAMBO/KABUORO/2971 (subdivided as 9975), moved the court by Notice of Motion dated 13th July 2018 seeking to have the 1st and 2nd defendants cited and punished for contempt of status quo orders issued on 31st August 2017 and reinstated on 8th March 2018, restraining construction on the suit land, and seeking preservation and interim injunctive orders. The respondents filed a preliminary objection contending the application was defective for non-compliance with Order 1 Rule 13 of the Civil Procedure Rules, and disputed service of the orders, the locus standi of the deponent of the supporting affidavits, and the evidential value of the photographs annexed. The court held that the deponent had locus standi under a registered power of attorney, so the preliminary objection failed. On contempt, the court found that the extracted reinstatement order contained date errors capable of causing confusion, that no document proved service of the orders on the respondents, and that the affidavit of service was imprecise and the photographs lacked precision and certification. Contempt could therefore not be established against parties not shown to be aware of the orders. The court also noted the finding in Kenya Human Rights Commission v Attorney General that the Contempt of Court Act, 2016 was constitutionally invalid. The application was dismissed with costs in the cause, and the orders of 8th March 2018 were extended accordingly.

Key legal issues

#
01

Whether the respondents were in contempt of the status quo orders of 31st August 2017 and 8th March 2018

Holding

No contempt established; service and awareness of the orders were in serious dispute

Reasoning

The extracted order (JEAO 2) contained date errors that caused confusion, and there was no document on record proving service of the reinstatement order on the 1st and 2nd respondents. The affidavit of service by the private process server was imprecise as to which order was served. The photographs (JEAO 3) lacked precision, dating and a certificate, hence of low evidential value.

p. 3
02

Whether the supporting affidavit sworn by Professor John E. Oluoch Ating'a disclosed a cause of action given the preliminary objection

Holding

The preliminary objection failed

Reasoning

The deponent held a registered power of attorney from the 1st and 2nd defendants and acted in the management of the estate of the applicants' deceased father, giving him locus standi. The court found paragraphs 8 to 11 of the replying affidavit showed the application itself lacked merit, so the preliminary objection flopped and the application was dismissed on the merits.

p. 4

Legal principles established

#
  • Contempt of court cannot be established where the party alleged to be in contempt was not properly served with, or aware of, the court order
  • The Contempt of Court Act, 2016 was found to be constitutionally invalid

Court orders

#
  1. 1.The preliminary objection dated 24th July 2018 is dismissed
  2. 2.The applicants' Notice of Motion dated 13th July 2018 is dismissed with costs in the cause
  3. 3.Orders of 8th March 2018 extended accordingly

Authorities

#

Legislation

  • Contempt of Court ActSection 4(a), 5(b), 5(c), 7(1), 23
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 99
  • Civil Procedure Rules, 2010Order 1 Rule 13(1) and (2), Order 40, Order 51(1), Order 51 Rule 16
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court Practice Directions, 2014Practice Direction No. 33(a)

Cases cited (3)

  • African Management Communications international Ltd –v- Joseph Mathenge Mugo and another
    (2016) eKLR
  • Econet Wireless Kenya Ltd – v- Minister for Information and Communication of Kenya and another
    (2005) eKLR
  • Kenya Human Rights Commission –v- Attorney General and another
    (2018) eKLR
Jurisdiction invoked
Section 4(a), 5(b),(c) and 7(1) of the Contempt of Court Act 2016; sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 and Order 51(1) of the Civil Procedure Rules 2010; Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Janet Akinyi Ating’a & another v Hilda Linet Achieng & 3 others [2019] KEELC 4677 (KLR)", Case Analysis (2019). ELC No. 782 of 2017 (formerly at Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4677/eng@2019-01-15

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