Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Busia High Court; notice of motion dated 31/8/2020)· [2020] KEELC 253 (KLR)

Robert Ouma Oduori & another v Thomas Muka Maulo & another [2020] KEELC 253 (KLR)

High Court of Kenya
16 December 2020
2,559 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

#

The High Court in Busia found a landowner guilty of disobeying a court order and ordered him to pay Kshs.200,000 for cattle he illegally auctioned.

What this practically means

#

Executive summary

#
The Defendants/Applicants moved the High Court at Busia by notice of motion dated 31/8/2020 seeking, among other things, compensation for moveable property worth Kshs.294,000 allegedly maliciously auctioned at Kshs.60,000, committal of the Respondents to civil jail for disobeying a consent order of 23/7/2015 staying execution and a status quo order of the Court of Appeal of 27/3/2017, deposit of the title deed, an injunction over Parcel No. BUKHAYO/MATAYOS/3116, damages, and reversal of the title registered in the 1st Respondent's name. The 1st Respondent opposed, arguing no stay order existed when he registered the title on 20/7/2016 and that the court was functus officio. The 2nd Respondent, the auctioneer, deposed that he executed warrants on 11/6/2020 without knowledge of any stay order, which had never been extracted for service. Relying on Kiru Tea Factory and Shimmers Plaza, the court held that contempt is quasi-criminal and requires proof of service with or knowledge of a clear order and of disobedience. The consent order, recorded by counsel and never set aside, bound the 1st Respondent; his transfer of the title on 20/7/2016 and his instruction to attach and sell the Applicants' cattle constituted contempt. The auctioneer, an agent of a disclosed principal unaware of the order, escaped liability. Holding that contempt proceedings empower the court to award compensation without a fresh suit, the court fixed compensation at Kshs.200,000, granted a temporary injunction over the suit property, found the 1st Respondent guilty of contempt with sentencing set for 10/2/2021, and awarded costs to the Applicants.

Key legal issues

#
01

Whether the 1st Respondent was guilty of contempt of the consent order of 23/7/2015

Holding

Yes; the transfer of the suit title into his name on 20/7/2016 breached the stay of execution order in place since 27/7/2015

Reasoning

The consent order was recorded by counsel for both parties and adopted on 27/7/2015, and had not been set aside. The 1st Respondent did not allege his advocate lacked authority, and an advocate's knowledge binds the client vis-à-vis third parties. The transfer and registration of the suit title was therefore done in breach of a subsisting order, establishing contempt.

p. 3
02

Whether the 2nd Respondent auctioneer was liable for contempt

Holding

No; he acted as agent of a disclosed principal and had no knowledge of the stay order

Reasoning

Although non-parties can be cited for contempt, the 2nd Respondent received warrants only on 11/6/2020, was never served with the 2015 order which was never extracted for service, and executed as agent of the 1st Respondent who was aware of the order. Liability rests with the 1st Respondent who instructed the attachment.

p. 3
03

Whether compensation could be awarded within the contempt application for the unlawfully sold cattle

Holding

Yes; the court awarded Kshs.200,000 against the 1st Respondent

Reasoning

The attachment and sale contravened the stay order and was thus illegal, null and void. Section 64 of the Civil Procedure Act and contempt jurisdiction empower the court to order compensation without a fresh suit. The Applicants valued the cattle at Kshs.294,000; no Respondent gave an alternative value, and the court fixed compensation at Kshs.200,000.

p. 3

Legal principles established

#
  • Contempt proceedings are quasi-criminal and the standard of proof is strict; the contemnor must have been served with or been aware of the order, the order must be clear, and disobedience proved
  • A party is bound by, and must obey, a consent order recorded by his advocate unless it is set aside; knowledge of the order by his advocate suffices
  • Third parties who are not parties to a suit may be committed for contempt, but an agent executing warrants for a disclosed principal who was unaware of the order is not liable
  • A court hearing contempt arising from unlawful execution may order compensation without a fresh suit

Court orders

#
  1. 1.The Applicants awarded compensation of Kshs.200,000 payable by the 1st Respondent within 60 days, in default execution to issue
  2. 2.The 1st Respondent found guilty of contempt of the court order of 23/7/2015 and to be sentenced accordingly, to appear on 10/2/2021, failing which a warrant of arrest shall issue
  3. 3.Temporary injunction restraining the defendant, his agents or representatives from any dealings on Parcel No. BUKHAYO/MATAYOS/3116 pending hearing and determination of the application and the appeal
  4. 4.Costs of the application awarded to the Applicants

Authorities

#

Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 63(a), 64(1)(a) and 64(2)
  • Civil Procedure RulesOrder 40 rule 3; Order 51 rule 1; Order 22 rule 65
  • Judicature Actsection 10
  • High Court (Practice & Procedure) Rules Cap 8Rule 3
  • Auctioneers Rules1997

Cases cited (3)

  • Kiru Tea Factory Co. Limited Vs Stephen Maina & 14 others
    (2019) eKLR
  • Shimmers Plaza Ltd Vs NBK
    (2015) eKLR
  • Eliud Muturi Mwangi (Practising in the name and style of Muturi & Co. Advocates) Vs LSG Lufthansa Services Europa/Africa GMBH & Another
    (2015) eKLR
Jurisdiction invoked
Order 40 rule 3 and Order 51 rule 1 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act; section 10 of the Judicature Act; Rule 3 of the High Court (Practice & Procedure) Rules Cap 8

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Robert Ouma Oduori & another v Thomas Muka Maulo & another [2020] KEELC 253 (KLR)", Case Analysis (2020). Not stated in the judgment (Busia High Court; notice of motion dated 31/8/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/253/eng@2020-12-16

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