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ELCDismissedNot stated in judgment (Notice of Motion dated 20th December 2018)· [2020] KEELC 3820 (KLR)
John Oluoch Oketch (Suing as Administrator ad litem of the Estate of Ludia Oketch Obuonde) & Sharif Kapanga & 11 others [2020] KEELC 3820 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiff, as administrator of the estate of Ludia Oketch Obuonde, moved the Environment and Land Court at Malindi by Notice of Motion dated 20th December 2018 seeking warrants of arrest against 12 Defendants for committal to civil jail for allegedly disobeying an injunction order issued on 24th July 2018 restraining interference with Plot No. 59 Malindi, and seeking their eviction with enforcement by OCS Malindi. The Defendants, through the 7th Defendant Julius Katana Mwaringa, denied disobedience, asserted long occupation of the property, disputed the Plaintiff's title, contending the registered owner was Arbi Ali Mohammed Mussani, and noted they had filed Malindi ELC Case No. 211 of 2018 against that owner seeking declaratory relief under the doctrine of adverse possession. The court observed the Defendants resided on the property alongside non-parties, and that the Plaintiff's supporting affidavit failed to explain the annexed photographs or attribute the structures to the Defendants. Emphasising that contempt proceedings are quasi-criminal and liberty is at stake, the court held such orders may issue only in the clearest circumstances upon proof of willful and deliberate disobedience, which was not demonstrated. The application was dismissed with costs to the Defendants/Respondents on 6th February 2020.
Key legal issues
#01
Whether the Plaintiff proved willful and deliberate disobedience of the injunction order of 24th July 2018
Holding
No - the Plaintiff failed to prove that the structures in the photographs were erected by the Defendants or their agents after service of the order
Reasoning
The court noted the Defendants reside on the suit property together with non-parties, and the supporting affidavit did not explain the photographs or attribute the structures to the Defendants. Because contempt is quasi-criminal and liberty is at stake, the applicant bore the burden of demonstrating willful and deliberate breach, which was not discharged on the material presented.
p. 2
Legal principles established
#- Contempt proceedings are quasi-criminal in nature and committal orders are granted only in the clearest circumstances upon proof of willful and deliberate disobedience
Court orders
#- 1.The Notice of Motion dated 20th December 2018 is dismissed with costs to the Defendants/Respondents
- Jurisdiction invoked
- Inherent contempt jurisdiction of the Environment and Land Court over disobedience of its orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Oluoch Oketch (Suing as Administrator ad litem of the Estate of Ludia Oketch Obuonde) & Sharif Kapanga & 11 others [2020] KEELC 3820 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 20th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3820/eng@2020-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.