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ELCDismissedEldoret ELC Judicial Review No. 4 of 2019· [2020] KEELC 565 (KLR)

Paul Gathingu Gachie v Cabinet Secretary for Lands & Physical Planning [2020] KEELC 565 (KLR)

Environment and Land Court of Kenya
25 November 2020
7,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail Lands Ministry officials for contempt because the applicant could not prove they deliberately disobeyed the order.

What this practically means

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Executive summary

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Paul Githungu Gachie, the Ex-parte Applicant, sought by a Notice of Motion dated 6th February 2020 to have Hon. Farida Karoney, Cabinet Secretary for Lands, and Mr. Edward K. Kosgei, Director of Land Administration, committed to civil detention for two years and fined Kshs.20,000,000 each for disobeying an order of 26th July 2019, which stayed the decision or action taken under Legal Notice No. 106 of 2019 delegating to named officers the Cabinet Secretary's power to issue leases and licences over private land. The Contemnors opposed, arguing defective and unchallenged service, reliance on an Attorney General's advisory of 23rd December 2019, inadmissibility of the Applicant's documentary evidence (an internal memo and leases), and that the order was ambiguous and sought to stay unchallenged statutory provisions. The court framed four issues: service/knowledge, breach, competency of the application, and costs. It held that service on the Respondent's Legal Officer was good service and that knowledge of an order suffices for contempt, following Simmers Plaza and Basil Criticos; that no leave was needed to commence committal proceedings per Christine Wangari Gachege; that the order was unambiguous and binding; but that the memo and leases were inadmissible under Njonjo Mue and Okiya Omtatah for want of certification and lawful procurement, and that the Applicant failed to prove to the above-balance-of-probabilities standard that the Contemnors willfully and deliberately breached the order, particularly absent evidence the Attorney General or Contemnors were served with the substantive Motion before acting on the advisory. The court nevertheless stressed that orders must be obeyed until discharged, warned against cherry-picking orders, dismissed the application with costs in the cause, and granted the Respondent thirty days to comply with order number 3 of 26th July 2019. Judgment delivered virtually at Eldoret by S. M. Kibunja, Judge, on 25th November 2020.

Key legal issues

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01

Service of the order and knowledge of it

Holding

Service on the Respondent's Legal Officer, unchallenged and acknowledged, amounted to good service; in any event knowledge of the order suffices for contempt. The Respondent knew of the order by 4th December 2019 at the latest, though the source was doubtful rather than the Media as alleged

Reasoning

The affidavit of service by Willis Odhiambo Agayi sworn on 30th July 2019 was never challenged; no affidavit from the receiving Legal Officer repudiated it, nor was the deponent called for cross-examination. Citing Simmers Plaza Ltd v National Bank of Kenya Ltd approving Basil Criticos v Attorney General, the court held knowledge supersedes personal service. However, the court could not assume the order reached the Contemnors personally by January 2020 without further evidence from the Applicant.

p. 5
02

Whether the Contemnors willfully and deliberately breached the stay order

Holding

No contempt established. The Applicant's key documents (internal memo and leases) were inadmissible, and the Contemnors' reliance on the Attorney General's advisory of 23rd December 2019 was unchallenged; the advisory, though erroneous on the facts, was not shown to be a deliberate scheme to breach the order

Reasoning

The internal memo and leases were neither certified under Section 80 of the Evidence Act nor shown to be lawfully obtained under the Access to Information Act and Articles 31 and 35 of the Constitution, rendering them inadmissible per Njonjo Mue and Okiya Omtatah. There was no evidence the Attorney General had been served with the pleadings as required by Section 13 of the Government Proceedings Act, and none that the substantive Motion had been served on the Respondent before the advisory, so the Applicant failed to prove willful, deliberate breach beyond the civil standard for contempt.

p. 7
03

Whether the contempt application was properly before the Court

Holding

Yes - no leave was required before filing the contempt application, per Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others

Reasoning

The Court of Appeal in Christine Wangari Gachege affirmed Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act as the statutory basis of contempt and held, applying the English Civil Procedure Rules, that leave or permission is not required for committal proceedings relating to breach of a judgment, order or undertaking. The Respondents' contrary objection based on Order 52 Rule 2 of the Rules of the Supreme Court of England and Part 81 of the English rules therefore failed.

p. 8
04

Ambiguity of the order of 26th July 2019 and the submission it was unimplementable

Holding

The order was not ambiguous and remained binding; the submission that it purported to stay unchallenged statutory provisions was misleading because the order preserved the pre-Legal Notice officers' authority to issue leases

Reasoning

The order stayed the decision or action under Legal Notice No. 106 and expressly directed that the officers responsible immediately prior to its promulgation continue issuing leases or licences over private land. Since those officers still fell under the Cabinet Secretary, the order was implementable. Parties cannot select which orders to obey while ignoring others; the remedy is variation or discharge, not disobedience.

p. 7

Legal principles established

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  • Knowledge of a court order suffices for contempt purposes; personal service is not indispensable where knowledge is shown
  • No leave is required to commence committal proceedings for breach of a judgment, order or undertaking
  • Illegally or irregularly obtained documents, accessed without following the prescribed access-to-information procedures, are inadmissible
  • A party cannot cherry-pick which court orders to obey; the remedy against a wide or unpopular order is to have it varied or discharged, not to disobey it
  • The standard of proof in contempt proceedings is above the balance of probabilities

Court orders

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  1. 1.The Applicant's Notice of Motion dated and filed on 6th February, 2020 is without merit and is dismissed with costs in the cause
  2. 2.The Respondent granted thirty (30) days from the date of the judgment to ensure compliance with order number 3 of 26th July, 2019
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Judicature ActChapter 8, Section 5
  • Civil Procedure ActSections 63(1)(3) and 3A
  • Environment and Land Court ActSection 29
  • Environment and Land Court Act No. 19 of 2011Section 13(7)(b)
  • Civil Procedure RulesOrder 40; Order 53 Rules 1(2) and 3(1)
  • Rules of the Supreme Court of England 1965Order 52 Rule 2
  • Contempt of Court Act 1981 (England)
  • Civil Procedure (Amendment No. 2) Rules 2012 (England)Part 81; Part 8
  • Government Proceedings ActChapter 40, Section 13
  • Evidence ActChapter 80, Sections 79, 80 and 81
  • Access to Information ActNo. 31 of 2016, Sections 7 to 13
  • Constitution of KenyaArticles 23(3)(f), 31, 35, 50(4)
  • Land ActNo. 6 of 2012, Sections 2 and 23(2), as amended by the Land Laws (Miscellaneous Amendment) Act No. 18 of 2018
  • Interpretation and General Provisions ActCap. 2, Section 38(1)
  • Legal Notice No. 106Kenya Gazette Supplement No. 101 of 1st July, 2019

Cases cited (16)

  • Republic Vs Kenya School of Law & 2 Others Exparte Juliet Wanjiru & 5 Others
    [2015] eKLR
  • Ramadhan Salim Vs Evans M. Maabi t/a Murby Auctioneers & Another
    Civil Appeal No. 69 of 2015
  • Christine Wangari Gachege Vs Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Econet Wireless Kenya Ltd Vs Minister for Information and Communication of Kenya & Another
    Misc. application No. 1640 of 2003, [2005] eKLR
  • Arthur Nderitu & Another Vs Settlement Fund Trustees & 2 Others; Fredrick Wang'ombe Nderitu & Another (Proposed Interested Parties)
    [2019] eKLR
  • Teachers Service Commission Vs Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Kenya Tea Growers Association Vs Francis Atwoli & 5 Others
    [2012] eKLR
  • Clarke and Others Vs Chadburn & Others
    [1985] 1 All ER (PC) 211
  • Simmers Plaza Ltd Vs National Bank of Kenya Ltd
    [2015] eKLR
  • Basil Critocos Vs Attorney General & 8 Others
    [2012] eKLR
  • Sam Nyamweya & 3 Others Vs Kenya Premier League Ltd & 2 Others
    [2015] eKLR
  • Stewart Robertson Vs Her Majesty's Advocate
    2007 HCAC 63
  • David Kiptum Yator & 2 Others Vs Attorney General & Others
    [2015] eKLR
  • Gatharia Karanja Mutitika & Others Vs Baharini Farm Limited
    (1985) KLR 227
  • Njonjo Mue & Another Vs Chairperson of Independent Electoral and Boundaries Commission & 3 Others
    (2017) eKLR
  • Okiya Omtatah Okoiti & Another Vs Attorney General & Another
    Nairobi CACA No. 13 of 2015/2016
Jurisdiction invoked
Article 23(3)(f) of the Constitution and Section 13(7)(b) of the Environment and Land Court Act No. 19 of 2011; Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act (contempt jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Gathingu Gachie v Cabinet Secretary for Lands & Physical Planning [2020] KEELC 565 (KLR)", Case Analysis (2020). Eldoret ELC Judicial Review No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/565/eng@2020-11-25

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