Paul Gathingu Gachie v Cabinet Secretary for Lands & Physical Planning [2020] KEELC 565 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Service of the order and knowledge of it
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
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.
Whether the Contemnors willfully and deliberately breached the stay order
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
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.
Whether the contempt application was properly before the Court
Yes - no leave was required before filing the contempt application, per Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
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.
Ambiguity of the order of 26th July 2019 and the submission it was unimplementable
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
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.
Legal principles established
#- 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
#- 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.The Respondent granted thirty (30) days from the date of the judgment to ensure compliance with order number 3 of 26th July, 2019
- 3.The Ruling to be transmitted digitally by the Deputy Registrar to Counsel on record through their e-mail addresses
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.