Andrew Oponyo Mulama & another v Samuel Omulama Amakanji & another [2020] KEELC 909 (KLR)

Environment and Land Court (delivered at Kakamega)

27 October 2020

NMN.A. Matheka

851 words in judgment

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The bottom line

A Kenyan land court dismissed a contempt application because the applicants offered only allegations, not evidence, that a fence blocked their water access.

What this practically means

Executive summary

The applicants, led by Andrew Oponyo Mulama, moved the court by a notice of motion dated 14th September 2020 brought under Rule 2(2)(b) and 3(2) of the High Court Practice and Procedure Rules of the Judicature Act, Sections 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules. They sought certification as urgent, an order compelling the respondents to give them access to water and the river by pulling down a fence on parcel Kisa/Emaitsi/83 pending the hearing of the suit, and an order that the respondents comply with a consent order of 2nd December 2019 restraining disposal of the suit property, failing which they be cited for contempt. The applicants alleged the 1st respondent sold part of the suit property, allowed purchasers into occupation, and fenced off their access to the river. The respondents, through exhibits including a letter from the area chief (SOA 2), minutes and a letter from a family meeting of 17th April 2019 (SOA 3 and 4) and a sale agreement of 30th August 2019 (SOA 5), asserted the applicants could still access water, the fence merely demarcated the 1st respondent's share, and he had sold his entire portion to the 2nd respondent before the consent order was issued. Matheka J found that contempt was not established and that the allegations would have to be proved by evidence at the trial. The application was dismissed with costs in the cause, and the applicants were advised to take an early hearing date.

Key legal issues

Whether the 1st respondent was in contempt of the consent order of 2nd December 2019

Holding

Contempt was not established; the applicants' allegations were unsubstantiated and required proof by evidence at the hearing of the suit

Reasoning

The applicants alleged that the 1st respondent sold part of the suit property, allowed purchasers to occupy the land, and fenced off the river thereby denying them water, in breach of the order of 2nd December 2019. The respondents countered with a chief's letter (exhibit SOA 2) showing the applicants could still access water, minutes and a letter confirming a family meeting of 17th April 2019 at which the fence was agreed, and a sale agreement showing the 1st respondent had sold his portion to the 2nd respondent before the consent order. On this material the court could not find disobedience proved.

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Whether the applicants should be granted access to the river by pulling down the fence pending the suit

Holding

The relief was refused; the court found the application unmerited and advised the applicants to seek an early hearing date

Reasoning

The applicants asserted the fence denied them their main source of water and that they were suffering. The respondents produced the area chief's letter confirming the applicants were able to access water and that the fence merely demarcated the 1st respondent's share of plot 83 following a family meeting, after which he sold his portion to the 2nd respondent. On the material before it, the court found no basis to order the fence pulled down, dismissing the application and directing the parties towards an early trial.

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Legal principles established

Contempt of court must be established by evidence; bare allegations in an application will not suffice

Court orders

1.The application dated 14th September 2020 is dismissed
2.Costs to be in the cause

Authorities

Legislation

Judicature Act - High Court Practice and Procedure RulesRule 2(2)(b) & 3(2)
Civil Procedure ActSections 3 and 3A
Civil Procedure RulesOrder 51 rule 1

Jurisdiction invoked: Rule 2(2)(b) & 3(2) of the High Court Practice and Procedure Rules of the Judicature Act; Sections 3 and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Andrew Oponyo Mulama & another v Samuel Omulama Amakanji & another [2020] KEELC 909 (KLR)", Case Analysis (2020). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/909/eng@2020-10-27

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