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ELCDismissedRuling on Application dated 30th September, 2020 (Petition number not stated in the judgment)· [2020] KEELC 887 (KLR)

Hannington Kyengo Munyao & 7 others v Benard Nguyo & 9 others [2020] KEELC 887 (KLR)

Environment and Land Court of Kenya
23 October 2020
2,436 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 threw out a contempt claim because the applicants had no evidence the other side actually disobeyed a court order.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O. A. Angote, J) determined an application dated 30th September, 2020 in which the Respondents in an ongoing Petition sought contempt of court proceedings against the eight Petitioners for disobeying orders issued by Angote, J on 26th October, 2018, restraining the Petitioners from taking over or interfering with the running and management of AIC Kangundo Children's Home on parcels Kangundo/Muisuni/945 and Kangundo/Muisuni/1009 pending hearing of the Petition. The Applicants argued that a stay of those orders granted on 23rd November, 2018 lapsed when the Petitioners withdrew their application, and that the Petitioners thereafter continued to interfere with the Home. The Petitioners countered that no personal service of the order was proved and no disobedience demonstrated. The court held that the stay orders lapsed by effluxion of time since they were never extended, and that personal service was unnecessary because knowledge of an order suffices for contempt proceedings; the Petitioners' advocate was present when the orders were issued, so knowledge was imputed to them. However, the court found that the Applicants had annexed no evidence of the alleged interference or of the Petitioners taking over the Home, and therefore had not proved the elements of civil contempt to the required standard. The application was dismissed with costs. The judgment also noted that the supporting affidavit was purportedly sworn by a person other than the named deponent.

Key legal issues

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01

Whether the orders of 26th October, 2018 were still in force despite the stay granted on 23rd November, 2018

Holding

The stay orders lapsed by effluxion of time, so the orders of 26th October, 2018 remained in force

Reasoning

The court had stayed the orders of 26th October, 2018 on 23rd November, 2018 only until 23rd January, 2019. The stay was never extended, and the Petitioners' application seeking a further stay was never heard. The stay therefore expired automatically and the underlying orders of 26th October, 2018 remained binding on the parties.

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02

Whether knowledge of the order could be imputed to the Petitioners without proof of personal service

Holding

Yes; knowledge of a court order suffices for contempt proceedings and, where a party's advocate was present in court when the order was made, that knowledge is imputed to the party

Reasoning

Relying on Shimmers Plaza Limited v National Bank of Kenya Limited, the court held that Kenyan jurisprudence has moved away from requiring personal service with a penal notice. The Petitioners' advocate was present when the orders of 26th October, 2018 were issued, and an advocate is assumed to report to the client all that transpires in court bearing on the client's case. The Petitioners were therefore aware of the order.

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03

Whether the Petitioners wilfully disobeyed the orders of 26th October, 2018

Holding

No; the Applicants failed to prove breach of the order to the required standard

Reasoning

The Applicants alleged that the Petitioners continued to interfere with the running and management of AIC Kangundo Children's Home, but annexed no evidence of requests to vacate or of actual interference. The order restrained the Petitioners from taking over or interfering with the running of the Home; there was no evidence that the Applicants were running the Home or that the Petitioners had taken over. The burden of proving contempt to a standard higher than balance of probabilities was not discharged.

p. 4

Legal principles established

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  • Personal service of a court order is not a prerequisite for contempt proceedings; knowledge of the order suffices, and where an advocate was present in court when the order was made, knowledge is imputed to the client
  • The four elements of civil contempt (from Contempt in Modern New Zealand, as cited in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi) must be proved to the required standard before a finding of contempt
  • A party must obey a court order even if they believe it irregular, until it is discharged, set aside or overturned on appeal
  • Interim stay orders that are limited in duration lapse by effluxion of time if not extended, reviving the underlying orders

Court orders

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  1. 1.The Application dated 30th September, 2020 is dismissed with costs
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court/Environment and Land Court over disobedience of its own orders

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, "Hannington Kyengo Munyao & 7 others v Benard Nguyo & 9 others [2020] KEELC 887 (KLR)", Case Analysis (2020). Ruling on Application dated 30th September, 2020 (Petition number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/887/eng@2020-10-23

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