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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 2683 (KLR)

Wiseman Tumbo Ngigi v Jackline Sigei [2020] KEELC 2683 (KLR)

Environment and Land Court
14 May 2020
DOD. O. Ohungo
1,998 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 jailed-threatened a woman for selling land against a court order, showing consent orders must be obeyed exactly.

What this practically means

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Executive summary

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The plaintiff Wiseman Tumbo Ngigi sued his wife, the defendant Jackline Sigei, over parcel Njoro/Ngata Block 8/257 (Karuiru), alleging joint purchase, and obtained interim injunctions from Maraga J on 4th June 2009 (confirmed by Ouko J on 12th November 2009) restraining disposal. On 28th March 2017 the parties recorded a consent order that the property be valued, sold and the proceeds banked in a joint account of their advocates and shared equally. The plaintiff then moved the court by Notice of Motion dated 8th March 2019 alleging the defendant sold the property in breach of that consent, seeking declarations voiding the sale, findings of contempt against the defendant, committal for six months and a fine of KShs 200,000. The defendant admitted the sale at KShs 1,250,000 but asserted the plaintiff had asked her to sell, and that she deducted her expenses and offered the plaintiff his share. The court held that prayers 3 and 4 could not issue because the property is now registered in the name of a purchaser who is not a party, and declaratory orders are final remedies unavailable in an application. Applying the test in Micheal Sistu Mwaura Kamau, the court found the consent order clear, its breach wilful and deliberate, and held the defendant in contempt. Balancing punishment with the parties' ongoing divorce, the court ordered the defendant to remit KShs 625,000 to the plaintiff's advocates and pay a KShs 50,000 fine within 21 days, default carrying two months' civil jail, with costs to the plaintiff. Judgment delivered at Nakuru on 14th May 2020 by D. O. Ohungo J.

Key legal issues

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01

Whether the defendant was in contempt of the consent order of 28th March 2017

Holding

Yes - she wilfully and deliberately violated the order by selling the property unilaterally, failing to bank the proceeds in a joint account and failing to remit 50% to the applicant

Reasoning

The consent order was clear and unambiguous: sale only after valuation and agreement, proceeds banked in a joint account of the parties' advocates, shared 50/50. The respondent sold unilaterally at KShs 1,250,000, made deductions contrary to the consent and did not bank the proceeds in a joint account. Frustrations, if any, should have been addressed through a variation application, not self-help.

p. 3
02

Whether prayers 3 and 4 could issue

Holding

No - the property is registered in the name of a purchaser who is not a party to the suit

Reasoning

The applicant conceded the property was sold and did not dispute the certificate of search showing registration in the name of Joseph Kipchumba Kipkiyoi. Orders affecting that proprietor cannot issue without joining him. Further, declaratory orders are final in nature and inappropriate in an interlocutory application.

p. 2

Legal principles established

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  • To commit a person for contempt, the court must be satisfied of wilful and deliberate disobedience of an order the person was aware of; the order must be clear and precise; and the standard of proof is higher than balance of probabilities though lower than beyond reasonable doubt
  • Consent orders are binding and must be obeyed unless varied by the court or by further consent; a party cannot unilaterally decide the manner of compliance

Court orders

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  1. 1.The defendant to remit to the plaintiff's advocates on record the sum of KShs 625,000, being 50% of the proceeds of the sale, within 21 days from the date of delivery of the ruling
  2. 2.The defendant shall pay to the court a fine of KShs 50,000 within 21 days from the date of delivery of the ruling
  3. 3.In default of compliance, the defendant shall be arrested and be committed to civil jail for a period of two (2) months
  4. 4.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Contempt of Court Actsection 4
  • Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, other Court Users and the General Public from the Risks Associated with the Global Corona Virus Pandemic-

Cases cited (6)

  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Republic v. Ahmad Abolfathi Mohammed & Another
  • Jihan Freighters Ltd v. Hardware & General Stores Ltd
  • A.B. & Another v. R. B.
    [2016] eKLR
  • Mutitika v. Baharini Farm
  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
Jurisdiction invoked
Original suit (Njoro/Ngata Block 8/257 (Karuiru)) before the Environment and Land Court; application for contempt of court orders made in that suit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wiseman Tumbo Ngigi v Jackline Sigei [2020] KEELC 2683 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2683/eng@2020-05-14

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