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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 14th September, 2018)· [2020] KEELC 1259 (KLR)

Isaac Ouma Nyabera v County Government of Busia [2020] KEELC 1259 (KLR)

Environment and Land Court
22 July 2020
AKA. K. KaniaruAOA. Omollo
2,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Busia found a county government official in contempt for ignoring a court order, ruling that knowing about an order counts even without personal service.

What this practically means

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Executive summary

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The Plaintiff, decree holder in a land suit decided on 11th April, 2018, sought contempt findings against the County Government of Busia and three of its officers - Nicodemus Onyango Mulaku (County Secretary), Maurice Odindo (Chief Officer, Ministry of Lands) and Caroline Anne Oduori (Butula Sub-County Administrator) - for defying injunctive orders and a decree requiring the closure of Bumala Market on LR No. Marachi/Bujumba/2414, and sought their committal to jail for six months. The order had been served on 8th May, 2018 on an unnamed 'legal clerk' at the County offices together with a 90-day notice. The application was opposed on grounds of lack of personal service and non-joinder of the officers, and the defendant also sought a stay pending review of succession proceedings, which was dismissed on 27th November, 2018. The court evaluated the return of service and found it grossly insufficient to prove personal service on the individual officers, but held, following Sam Nyamweya, Shimmers Plaza and Basil Criticos, that knowledge of an order suffices and dispenses with personal service. Maurice Odindo, who swore the affidavit supporting the defendant's stay application and whose docket covered the market, was held in blatant and flagrant contempt. The roles of Mulaku and Oduori were not demonstrated and no service on them was proved, so they were not convicted. Prayers (2) and (3) were granted in respect of the defendant and Odindo; the prayer to close the market was refused as superfluous since the judgment's injunctive order remained in force; costs were awarded to the Plaintiff against the defendant.

Key legal issues

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01

Whether service of the contempt order was properly effected

Holding

Personal service was not proved - the return of service described only an unnamed 'legal clerk' - but knowledge of the order can substitute for personal service

Reasoning

The court evaluated the process server's return of service and found the details grossly insufficient, as the server did not identify the office, the secretary or the legal clerk. However, following Sam Nyamweya, Shimmers Plaza and Basil Criticos, the court accepted that knowledge of an order supersedes personal service. The defendant's own application for stay, sworn by Maurice Odindo, proved knowledge.

p. 3
02

Whether the cited officers were in contempt

Holding

Only Maurice Odindo was held in contempt; Mulaku and Oduori were not established as contemnors

Reasoning

Maurice Odindo swore the affidavit in support of the stay application, demonstrating awareness of the order; the injunction concerned his docket as Chief Officer, Ministry of Lands. His defiance was blatant and flagrant. The roles of Mulaku and Oduori were unclear, no service was proved on them, and they were not parties properly shown to have disobeyed the order.

p. 3

Legal principles established

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  • Knowledge of a court order can dispense with the requirement of personal service in contempt proceedings
  • A party who knows of a court order cannot disobey it on the belief that it is irregular or void; it must be obeyed until discharged
  • Obedience of court orders is compulsory and central to judicial authority and the rule of law

Court orders

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  1. 1.Maurice Odindo, Chief Officer, Ministry of Lands, is found guilty of contempt of court
  2. 2.Prayer (2) of the application granted insofar as it relates to the defendant and Maurice Odindo
  3. 3.Prayer (3) granted to the extent that it relates to the defendant and Maurice Odindo
  4. 4.Prayer 4 (closure of Bumala Market) not granted
  5. 5.Prayer 5 not separately granted as the injunctive order in the judgment remains in force
  6. 6.The defendant to pay costs of the application

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure ActSections 1A, 3A and 63(e)
  • Civil Procedure RulesOrders 40 rule 3 and 53 rule 1

Cases cited (7)

  • Ochino and Another vs Okombo and 4 Others
    (1989) KLR
  • Sam Nyamweya & 3 Others vs Kenya Premier League Limited & 2 Others
    (2015) eKLR
  • Justus Kariuki Mate & Another vs Martin Nyaga Wambora & Another
    CA 24/2014, Nyeri
  • Shimmers Plaza Ltd vs NBK
    (2015) eKLR
  • Basil Criticos vs Attorney General & 8 Others
    (2012) eKLR
  • Hadkinson vs Hadkinson
    (1952) All ER 567
  • Chuck vs Cremer
    (1) 1 Coop Temp Cott 342
Jurisdiction invoked
Section 5(1) of the Judicature Act, Sections 1A, 3A and 63(e) of the Civil Procedure Act, Orders 40 rule 3 and 53 rule 1 of the Civil Procedure Rules

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, "Isaac Ouma Nyabera v County Government of Busia [2020] KEELC 1259 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 14th September, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1259/eng@2020-07-22

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