Peter Mahinda Kanyora & 2 Others v Julius Mugo Gachagua [2020] KEELC 3079 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection based on Order 9 Rule 8 CPR was merited
Dismissed - not a true preliminary objection and Order 9 Rule 8 applies only where a party intends to act in person
Applying the Mukisa Biscuits definition, a preliminary objection must be a point of law capable of disposing of the suit. The objection here could not dispose of the entire suit, the suit being part-heard. Further, Order 9 Rule 8 governs parties intending to act in person, whereas the Applicants' Counsel remained on record. The authority relied on by the Respondent (Stephen Mwangi Kimote v Murata Sacco) concerned Order 9 Rule 9, post-judgment situations, and was distinguishable.
Whether the Respondent had knowledge of the orders notwithstanding absence of personal service
Yes - his Counsel was present when the orders were issued and when the consent was adopted
The record showed the Respondent's Counsel was present on 10th December 2012 when the injunction issued, and the consent order of 27th September 2017 was adopted in the presence of Counsel for both parties. Relying on Shimmers Plaza, knowledge by an advocate in Court is attributed to the client, making personal service unnecessary.
Whether the Respondent disobeyed the orders
Yes - the willful subdivision of LR 10422/9 into 507 parcels and continued alienation breached the orders
Annexures PMK1 and PMK2 showed sale agreements and letters from the Ministry of Lands confirming subdivision into 507 parcels under Nanyuki/Marua Block 11, causing the original parcel to cease to exist. These facts were not controverted. The Respondent willfully defied clear, unambiguous orders despite knowledge of them, attracting civil contempt with criminal-type sanctions.
The legal basis for contempt proceedings after the invalidation of the Contempt of Court Act
The Court reverted to section 5(1) of the Judicature Act and section 29 of the Environment and Land Court Act to avoid a lacuna
The Contempt of Court Act 2016 was declared invalid in Kenya Human Rights Commission v Attorney General. Since the Applicants had invoked 'all other enabling provisions', the Court reverted to the pre-Act regime - section 5(1) Judicature Act importing English contempt law - and section 29 ELC Act, per Woburn Estate and the Waithaka case on inherent jurisdiction under section 3A Civil Procedure Act.
Legal principles established
#- Knowledge of a court order supersedes personal service; service on an advocate is service on the client
- The applicant in civil contempt proceedings must prove the terms of the order, the respondent's knowledge of them, and failure to comply
- A court order binds the party against whom it is made and must be obeyed until discharged, even if believed irregular or void
- It is the duty of the Court not to condone deliberate disobedience of its orders
Court orders
#- 1.The Notice of Preliminary Objection dated 16th December 2019 is dismissed
- 2.The Respondent Julius Mugo Gachagua is found to be in blatant/willful contempt of the Court orders of 10th December 2012 and the consent order of 27th September 2017
- 3.Summons be issued to Julius Mugo Gachagua to appear for sentencing on 5th May 2020 at the Nyeri Environment and Land Court
- 4.The Plaintiffs/Applicants' application dated 28th November 2019 is allowed with costs
- Jurisdiction invoked
- Inherent jurisdiction; Section 5(1) of the Judicature Act Cap 8; Section 29 of the Environment and Land Court Act; Sections 3A and 63 of the Civil Procedure Act via 'all other enabling provisions of the law'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mahinda Kanyora & 2 Others v Julius Mugo Gachagua [2020] KEELC 3079 (KLR)", Case Analysis (2020). Not stated in the judgment (Environment and Land Court suit at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3079/eng@2020-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.