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ELCPartially AllowedKisii CM ELC Case No. 19 of 2019 (Notice of Motion dated 25th October 2019)· [2020] KEELC 3699 (KLR)

George M. Ondara v Hellen Nyangara Okwani & another [2020] KEELC 3699 (KLR)

Environment and Land Court of Kenya
21 January 2020
JOJ.M Onyango
1,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled that ignoring a served court order is contempt of court, but delayed deciding the punishment to a later hearing.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th October 2019 brought under Order 40 Rule 2(2) of the Civil Procedure Rules and Sections 1, 1A, 3 and 63 of the Civil Procedure Act, the Plaintiff sought a finding that the Respondents had disobeyed a temporary injunction issued on 6th April 2019 restraining interference with the suit property known as L.R NYARIBARI/CHACHE/BOBURIA/5816 and directing vacant possession, together with committal to prison for up to six months and/or sequestration. The order was served on the Respondents on 13th May 2019, evidenced by an affidavit of service. The application was unopposed, the Respondents having filed no response despite service. The court framed a single issue: whether the Respondents ought to be punished for disobeying the order of 6th April 2019. Relying on Teachers Service Commission v KNUT, Econet Wireless Kenya Ltd v Minister for Information, Kenya Human Rights Commission v Attorney General and Cecil Miller v Jackson Njeru, the court set out the elements of civil contempt: a clear and unambiguous order binding on the defendant, knowledge or proper notice, breach of the order, and deliberate conduct. The court found all elements satisfied: the order was clear, unambiguous and binding, was duly served, and the Respondents deliberately failed to vacate the suit premises. The court held the Respondents culpable of disobeying the order but deferred punishment, directing that the matter be mentioned on 4th February 2020 for sentencing. No costs order was recorded.

Key legal issues

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01

Whether the Respondents were guilty of civil contempt of the order of 6th April 2019

Holding

The Respondents were culpable of disobeying the order, the elements of civil contempt having been established

Reasoning

The court applied the four elements of civil contempt: clarity of the order, notice, breach and deliberateness. The temporary injunction restraining interference with the suit property and requiring vacant possession was clear and unambiguous, was served on the Respondents on 13th May 2019 as evidenced by an affidavit of service, and the Respondents deliberately failed to vacate. The application was unopposed, no response having been filed despite service.

p. 2

Legal principles established

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  • To establish civil contempt, the applicant must prove that the terms of the order were clear and unambiguous and binding, that the defendant had knowledge or proper notice of the order, that the defendant breached it, and that the breach was deliberate
  • It is the plain obligation of every person against whom a court order is made to obey it unless and until it is discharged, even where the person believes the order to be irregular or void
  • Courts punish contempt to safeguard the rule of law, not the integrity of the judiciary or the personal ego of the judge

Court orders

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  1. 1.A finding that the Respondents are culpable of disobeying the court order dated 6th April 2019
  2. 2.The matter to be mentioned on 4th February 2020 for sentencing

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2(2)
  • Civil Procedure ActSections 1, 1A, 3 and 63
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 160

Cases cited (5)

  • Teachers Service Commission V Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Econet Wireless Kenya Ltd VS. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Kenya Human Rights Commission V Attorney General and Another
    (2018) eKLR
  • Cecil Miller V Jackson Njeru
    (2017)
  • Louis Ezekiel Hart V Chief George Ezekiel Hart
    SC 52/2983 (2nd February 1990)
Jurisdiction invoked
Order 40 Rule 2(2) of the Civil Procedure Rules and Sections 1, 1A, 3 and 63 of the Civil Procedure Act

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, "George M. Ondara v Hellen Nyangara Okwani & another [2020] KEELC 3699 (KLR)", Case Analysis (2020). Kisii CM ELC Case No. 19 of 2019 (Notice of Motion dated 25th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3699/eng@2020-01-21

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