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ELCDismissedNotice of Motion dated 24th June 2019 in Malindi ELC Suit (referenced as Malindi ELC No. 2 of 2012 / related Malindi CMCC Land Case No. 5 of 2018)· [2020] KEELC 781 (KLR)

Bishop Mark Kubai Kariuki & 5 others v Japhet Noti Charo & 2 others [2020] KEELC 781 (KLR)

Environment and Land Court
5 November 2020
1,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to punish a landowner for contempt because the church plaintiffs relied on a lapsed consent order and ignored the later case that authorised the demolition.

What this practically means

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Executive summary

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The Plaintiffs, church officials of the Deliverance Church of Kenya, moved the Environment and Land Court at Malindi by Notice of Motion dated 24th June 2019 seeking contempt orders against the 1st Defendant, Japhet Noti Charo, his jailing for up to six months, a mandatory order to reconstruct structures demolished on 20th June 2019 on Plot Portion No. 14034 Sabaki Squatters Upgrading Scheme, a permanent injunction against dealings with the property, and punishment of Court Bailiff Samuel Ntongai for executing an order at night. The Plaintiffs relied on a consent order of 16th June 2015 maintaining status quo, said to have been recorded with the participation of the 1st Defendant's advocate. The 1st Defendant opposed, asserting ownership of the plot, denying knowledge of the consent order, and explaining that the demolition was effected pursuant to ex parte orders issued on 2nd April 2019 in Malindi CMCC Land Case No. 5 of 2018, a suit he filed against the 6th Plaintiff after withdrawing Malindi ELC No. 2 of 2012 in April 2018. The court found the consent order had been made in the withdrawn suit and that the Plaintiffs had not annexed it; it could not assume it still existed at the time of the demolition. The execution complained of was of lawful orders from another court, and the Plaintiffs, having ignored that suit, could not found contempt on its enforcement. The Motion was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether the consent order of 16th June 2015 survived to ground a contempt application in June 2019

Holding

No. The order was made in Malindi ELC No. 2 of 2012 which the 1st Defendant wholly withdrew on 24th April 2018; the Plaintiffs also failed to annex the impugned order, so the court could not confirm its terms or continued existence.

Reasoning

The court noted the impugned orders were neither attached to the application nor the replying affidavit. It traced the order to High Court Civil Suit No. 2 of 2012, later ELC No. 2 of 2012, which was withdrawn in April 2018. A year later the 1st Defendant instituted Malindi CM's Land Case No. 5 of 2018 in which removal orders were issued on 2nd April 2019. The demolition flowed from executing those later, lawful orders, not from breaching the lapsed consent order.

p. 2
02

Whether executing orders from another court, after failing to defend that suit, constitutes contempt

Holding

No. The Plaintiffs were aware of the new case but failed to participate; they cannot accuse the 1st Defendant of contempt for executing lawful orders from that court.

Reasoning

The court found the 6th Plaintiff was served with the CM's court suit and ignored it. The 2nd April 2019 orders by Mrs Wewa SPM were duly executed with police assistance. Enforcement of a valid order of a competent court cannot amount to contempt, and the Plaintiffs' remedy lay in defending or challenging that suit, as they in fact did by filing Constitutional Petition No. 20 of 2019.

p. 3

Legal principles established

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  • Contempt cannot lie against a party for executing lawful orders lawfully obtained from another court
  • A party seeking to enforce an order must annex and prove the order it seeks to enforce; the court cannot assume the existence of an unattached order whose source suit was withdrawn

Court orders

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  1. 1.The Motion dated 24th June 2019 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant/Respondent
Jurisdiction invoked
Original contempt and injunctive jurisdiction of the Environment and Land Court over the suit property dispute

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, "Bishop Mark Kubai Kariuki & 5 others v Japhet Noti Charo & 2 others [2020] KEELC 781 (KLR)", Case Analysis (2020). Notice of Motion dated 24th June 2019 in Malindi ELC Suit (referenced as Malindi ELC No. 2 of 2012 / related Malindi CMCC Land Case No. 5 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/781/eng@2020-11-05

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