Kalondu Mbusya v Martin Kimweli Kikoi & 12 others [2020] KEELC 450 (KLR)
The bottom line
#A Kenyan court refused to jail a land occupier for contempt because no order directed her to vacate, but it still allowed her eviction with police assistance.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was in contempt of court warranting committal to civil jail
The committal prayer failed because no order or decree directing the Plaintiff to vacate existed; contempt requires breach of a clear and unambiguous order
Relying on Katsuri Limited vs. Kapurchand Depar Shah, the court noted contempt is quasi-criminal and must be precisely defined and satisfactorily proved. Applying the four grounds in Bonnie and Lowe's 'The Law of Contempt', the first element fails: although both courts declared the property belonged to the 1st Defendant, neither decree directed the Plaintiff to move out, and the 1st Defendant exhibited no such order. The Plaintiff therefore could not have breached a clear, unambiguous, binding order and committal could not issue.
Whether the Plaintiff should be evicted from the suit property with police assistance
The eviction prayer was granted; the Plaintiff and her children were to vacate so as to end litigation running since 1999
The court held that the present application itself sought eviction with police assistance, answering the Plaintiff's objection that no eviction application was before the court. Since courts do not issue orders in vain, the declarations of ownership in 2003 and 2017 in effect required the Plaintiff to vacate. She had had time since the 2017 Court of Appeal decision to move out, so there was no merit in her claim of being hurried, and the long-running litigation needed to be brought to an end.
Legal principles established
#- For a contempt finding, the alleged contemnor must have disobeyed a clear and unambiguous order; where the judgment declares ownership but contains no order to vacate, committal cannot lie
- Contempt of court is of a criminal character and must be proved to a standard higher than a balance of probabilities, though short of proof beyond reasonable doubt
- Courts do not issue orders in vain; a declaration of ownership necessarily requires the unsuccessful party to vacate to give the successful party peaceful possession
Court orders
#- 1.The Officer Commanding Sultan Hamud Police Station (O.C.S) to provide security for the eviction of the Plaintiff, her children, agents and/or servants by the Court Bailiff from the 1st Defendant's Land Reference No. Makueni/Konza South Block 1/Marwa/70
- 2.The Plaintiff to bear the costs of the Application and the costs of the eviction
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property, including enforcement of its own orders and decree (contempt/execution proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalondu Mbusya v Martin Kimweli Kikoi & 12 others [2020] KEELC 450 (KLR)", Case Analysis (2020). Notice of Motion dated 27th January, 2020 in Makueni/Konza South Block 1/Marwa/70 suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/450/eng@2020-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.