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ELCDismissed· [2020] KEELC 3595 (KLR)

Mark Collins Okoth and James Omondi Okoth (suing as Administrators to the Estate of Geoffrey Okoth Oyoye (Deceased) v Sukari Industries Limited & 4 others [2020] KEELC 3595 (KLR)

Environment and Land Court
16 January 2020
GOG. M. A. Ongondo
2,223 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 refused to jail people for disobeying a court order because the order was defective and never properly served.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of Motion dated 25th September 2018 in which Mark Collins Okoth and James Omondi Okoth, administrators of the estate of Geoffrey Okoth Oyoye (deceased), sought contempt orders against the 1st to 5th respondents. The applicants alleged that the respondents disobeyed a status quo order made on 19th September 2017 and issued on 22nd September 2017 by demolishing three family houses on LR No. 345 W. Nyakal/Kanyikela in July 2018, and sought committal to civil jail, a mandatory penalty, reconstruction of the houses, damages, and enforcement by police. The respondents opposed on grounds of lack of personal service and lack of locus. After considering rival submissions and authorities, the court framed the issues as whether the respondents disobeyed the orders and whether they could be committed to prison. The court found that the extracted order bore no penal notice and was therefore fundamentally defective; that it was served on an unidentified secretary rather than personally; and that personal service was never dispensed with. The court also endorsed the position that committal is a last resort to be exercised with the greatest care. Concluding that the application was not merited, the court disallowed it with costs in the cause on 16th January 2020.

Key legal issues

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01

Whether the respondents disobeyed court orders of 19th September 2017

Holding

No finding of disobedience because the order was not validly served and was defective

Reasoning

The court found the order JOO2 was directed at the 1st respondent, but it was served only on an unidentified secretary at the respondent's office, not personally on the respondents. The court did not dispense with personal service. Further, the extracted order bore no penal notice, rendering it fundamentally defective. Without valid service and a compliant order, contempt could not be established.

02

Whether the respondents should be committed to prison for contempt

Holding

No; committal is a last resort and the threshold was not met

Reasoning

Relying on the Alken and Okolla Ojwang authorities, the court approved the position that the power to commit alleged contemnors must be exercised with the greatest care and as a last resort. Since the order was defective and improperly served, the respondents could not have knowledge of the order as envisaged in the Kenya Tea Growers Association and Woburn cases, so the committal application failed.

p. 4

Legal principles established

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  • Every person has an unqualified obligation to obey court orders unless discharged therefrom, grounded on Articles 1(3)(c) and 159(1) of the Constitution
  • An order of contempt must bear a penal notice and be personally served
  • Power to commit for contempt is a last resort remedy to be exercised with greatest care

Court orders

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  1. 1.The Notice of Motion dated 25th September 2018 and filed on 11th October 2018 is disallowed with costs in the cause

Authorities

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Legislation

  • Civil Procedure (Amendment No.2) Rules 2012 (England & Wales)Rule 81.4
  • Civil Procedure Rules, 2010 (Kenya)Order 51 Rule 16
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33(a) and (b)
  • Constitution of Kenya, 2010Articles 1(3)(c) and 159(1)

Cases cited (10)

  • Hadkinson v Hadkinson
    (1952) 2 ALLER 567
  • Commercial Bank of Africa Ltd v Ndirangu
    (1992) KLR 30
  • The Director of Pensions v Abdul Majid Cockar
    (1999) eKLR
  • Woburn Estate Limited v Margaret Bashforth
    (2016) eKLR
  • Katsuri Limited v Kapurchand Depar Shah
    (2016) eKLR
  • Kenya Tea Growers Association v Francis Atwoli and 5 others
    (2012) eKLR
  • Fredrick Okolla Ojwang v Orange Democratic Movement and 2 others
    (2017) eKLR
  • John Zacharia Moguche v County Executive Committee Member of Kisii and 16 others
    (2019) eKLR
  • Sam Nyamweya and 3 others v Kenya Premier League Ltd and 2 others
    (2015) eKLR
  • Ogada v Mollin
    (2009) KLR 620
Jurisdiction invoked
Inherent powers and jurisdiction of the court; Rule 81.4 of the Civil Procedure (Amendment No.2) Rules 2012 (England & Wales)

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, "Mark Collins Okoth and James Omondi Okoth (suing as Administrators to the Estate of Geoffrey Okoth Oyoye (Deceased) v Sukari Industries Limited & 4 others [2020] KEELC 3595 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3595/eng@2020-01-16

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