Agnes Muthoni Mwangi & another v Priscilla Wanjeri Gathoni & 2 others [2020] KEELC 524 (KLR)
The bottom line
#A Kenyan landowner was fined Ksh. 300,000 for contempt after removing roofs and doors to force occupants out, despite a court injunction forbidding eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Respondent had knowledge of the order of 2nd August 2018
She had knowledge: her advocate was in court when the ruling was delivered, and jurisprudence favours knowledge over strict personal service
The court record showed that Mr. Kimunya Advocate held brief for the 3rd Respondent's counsel when the ruling was delivered on 2nd August 2018. Relying on Shimmers Plaza Limited v National Bank of Kenya Limited, the court held that where an advocate appears in court on a party's instructions, orders made in his presence are presumed known to the client, so personal service was unnecessary.
Whether a valid and unambiguous court order existed
Yes - an injunction restraining the 3rd Respondent from evicting the Plaintiffs from the suit land until the case was heard and determined
The order of 2nd August 2018 granted leave to amend the Originating Summons to join the 3rd Respondent and issued an injunction restraining her or anybody acting on her behalf from evicting the Plaintiffs from the suit land Thegenge/Karia/1682 pending hearing and determination. The court found the terms clear and unambiguous, and this was not disputed by the parties.
Whether the 3rd Respondent's acts of erecting a gate, removing roofs and doors, and damaging premises amounted to breach of the injunction
Yes - the acts amounted to a constructive eviction and a wilful, intentional defiance of the order
Although the order prohibited eviction and no physical expulsion occurred, the court held that demolishing roofs, doors and walls, vandalising the electricity meter and logging trees with the effect of making the premises uninhabitable was an eviction strategy designed to force the Applicants to abandon the houses. The applicants' evidence on these acts was unchallenged and the 'replacement of dilapidated roofs' explanation was disbelieved.
Legal principles established
#- In order to succeed in civil contempt proceedings the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure by the respondent to comply with them
- Knowledge of a court order, as opposed to strict personal service, suffices for contempt proceedings; where an advocate was in court when orders were made, the client is presumed to know them
- Depriving occupants of roofing, doors, walls and utilities with intent to force them out constitutes constructive eviction
Court orders
#- 1.The 3rd Respondent, Serah Wangari Mbugua, condemned to pay a fine of Ksh. 300,000/- (three hundred thousand shillings), in default to serve a term of 3 months in civil jail, effective immediately
- 2.The Applicants' Application dated 5th December, 2019 allowed with costs
- Jurisdiction invoked
- Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act; Order 40 Rule 3(1) of the Civil Procedure Rules; Articles 10(1) and 159(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Muthoni Mwangi & another v Priscilla Wanjeri Gathoni & 2 others [2020] KEELC 524 (KLR)", Case Analysis (2020). Notice of Motion dated 5th December, 2019 (arising from suit formerly High Court Civil Case No. 127 of 2010 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/524/eng@2020-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.