Zakayo Kwendo Agoi v Benson Ochunga Amboko [2020] KEELC 140 (KLR)
The bottom line
#A Kenyan land buyer who ignored a court injunction must vacate the land or pay Kshs. 50,000 and face one month in civil jail.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was in contempt of the decree of injunction issued on 8th February 2018
Yes; the decree was served on the respondent, who openly stated in court that the land was his and he would not allow the applicant access, and no stay or application to set aside was in place
The court perused the file and found the applicant had obtained a decree of injunction dated 8th February 2018 which was served on the respondent. The respondent personally appeared in open court and stated the land was his and he would not allow the applicant to use it. He had not sought variation or setting aside of the order and there was no stay, so court orders had to be obeyed. The application was therefore found merited.
What sanction is appropriate for the contempt
A conditional committal order: the respondent to vacate the suit land, failing which a fine of Kshs. 50,000/= and, in default, one month in civil jail
Although the application sought imprisonment for up to six months and/or attachment of property under Order 40 Rule 3(1), the court exercised discretion to first give the respondent the chance to comply by vacating the land. The committal to civil jail was made conditional on non-vacation and non-payment of the fine, reflecting that the power to commit to jail must be exercised with care and as a last resort.
Legal principles established
#- All persons served with or aware of a court order have a duty to obey it; the only avenue for a dissatisfied party is to seek variation or setting aside of the order
- The standard of proof in contempt proceedings is higher than the balance of probabilities but not as high as beyond reasonable doubt
Court orders
#- 1.The respondent Benson Ochunga Amboko to vacate the suit land W/Bunyore/Embali/2600 from the date of the order, failure of which he will be cited for contempt and directed to pay a fine of Kshs. 50,000/= and in default be committed to civil jail for one month
- 2.Costs of the application to the applicant
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, 2010 and Order 40 Rule 3 of the Civil Procedure Rules; section 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakayo Kwendo Agoi v Benson Ochunga Amboko [2020] KEELC 140 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/140/eng@2020-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.