Elizabeth Njeri Hinga & another v Nyoike Njenga Hinga & another [2020] KEELC 2557 (KLR)
The bottom line
#A Kenyan court found a landowner guilty of contempt for selling subdivided land while a court order protecting it was still in force.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was in contempt of the orders of 27th June 2011
Yes - the Respondent was served with and had knowledge of the order, and deliberately breached it by subdividing, transferring and dealing with the suit property
The order of 27th June 2011 required preservation of the suit property and restrained the Respondent and her deceased brother from prejudicing the Applicant's interests. The order was registered against the title, the Respondent's lawyers were in court when it was made, and she was personally served at Mirema. Her plea of ignorance of its scope was rejected as an excuse. She subdivided the property, obtained a provisional title and transferred a parcel to a third party despite the grant not being confirmed.
Whether the injunction lapsed after twelve months under Order 40 Rule 6 of the Civil Procedure Rules
No - the orders breached were preservation orders directed at the Respondent and her deceased brother, not an injunction, and Order 40 Rule 6 did not apply to them
The Respondent argued that the injunctive orders lapsed after twelve months because the suit was not concluded within that period. The court held that the order which would have lapsed under Order 40 Rule 6 was the injunction against the Applicant and the deceased Defendant, whereas the orders breached were preservation orders given in a different context and therefore not subject to the twelve-month lapse rule.
Whether inhibition orders should issue and whether the sub-titles should be cancelled
Inhibition granted over LR No. 11478 (IR 20393) and the subdivisions LR No.11478/1 to 55; cancellation of titles refused at this stage to protect third parties not before the court
The court found the Respondent had no respect for the doctrine of lis pendens, disposing of suit property while the suit was pending, necessitating inhibition of all dealings until the dispute is determined. Cancellation of the resulting titles was declined because it would affect third-party purchasers who may have bought without knowledge of the dispute; the inhibition order was held sufficient to protect the Applicant pending trial.
Legal principles established
#- In an application for contempt, the applicant must prove that a court order was issued; that it was served on the contemnor or the contemnor had knowledge of it; and that the contemnor deliberately breached it.
- Preservation orders directing a party not to prejudice another's interest in suit property are not injunctions and do not lapse under Order 40 Rule 6 of the Civil Procedure Rules.
- A person who is not a party to a suit may be punished for contempt, but only where there is evidence that the order was served on him or that he had knowledge of it.
Court orders
#- 1.The Respondent, Elizabeth Njeri Hinga is found guilty of contempt of the Court order given on 27th June 2011
- 2.The Respondent shall personally attend court on a date to be given after court business normalizes for purposes of mitigation and further action by court in accordance with the law
- 3.Pending the hearing and determination of the suit, an order of inhibition is issued inhibiting any dealings in LR No. 11478 (IR 20393) together with the consequential sub-divisions being LR No.11478/1 to 55
- 4.The Respondent shall pay the costs of the application
- Jurisdiction invoked
- Original civil jurisdiction; application for contempt of court orders and inhibition under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Njeri Hinga & another v Nyoike Njenga Hinga & another [2020] KEELC 2557 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2557/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.