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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 1st October 2018)· [2020] KEELC 3881 (KLR)

George Morara Ongeri v County Government of Kisii; Abel Sagini & another (Contemnor) [2020] KEELC 3881 (KLR)

Environment and Land Court
17 January 2020
JOJ.M. Onyango
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The court cancelled contempt arrest proceedings against Kisii county officers but kept the land injunction firmly in place.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (Onyango J) determined the Defendant's Notice of Motion dated 1st October 2018 seeking a stay of execution and setting aside of orders issued that day in a contempt proceeding. The underlying suit, filed on 13th February 2017, alleged that the County Government of Kisii had trespassed on L.R NO. CENTRAL KITUTU/MWAMANWA/520 and was constructing ward offices thereon; an injunction issued on 6th March 2017. The plaintiff then sought to punish Abel Sagini and Patrick Lumumba for contempt. After the alleged contemnors failed to appear on 1st October 2018 in response to a Notice to Show Cause, warrants of arrest issued (later lifted on 3rd October 2018), prompting the present application. The defendant argued there was no personal service and that the officers cited were not responsible for the construction; the plaintiff maintained service was effected through agents and that construction was ongoing. The court framed two issues: whether to stay execution of the 1st October 2018 orders and whether to set them aside. Finding the alleged contemnors' position arguable rather than contumacious - they denied responsibility rather than wilfully disobeying - the court set aside the Notice to Show Cause while expressly preserving the injunction, warning that disobedience would attract action against the right contemnors. No costs order was stated.

Key legal issues

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01

Whether the orders of 1st October 2018 (warrants of arrest/Notice to Show Cause) ought to be set aside

Holding

The Notice to Show Cause was set aside because the alleged contemnors denied being responsible for the construction and their non-appearance stemmed from an arguably reasonable interpretation of the notice

Reasoning

The court distinguished authorities on wilful disobedience: the alleged contemnors claimed not to be the officers responsible for the construction, and their counsel interpreted 'appear' as explaining why execution should not issue, having filed Grounds of Opposition. The court found this arguable rather than contumacious and exercised its discretion to set aside the Notice to Show Cause while preserving the injunction.

p. 2
02

Effect of setting aside the Notice to Show Cause on the underlying injunction

Holding

The injunction remains in force; only the Notice to Show Cause was set aside, and disobedience will attract action against the right contemnors

Reasoning

The court was careful to limit the scope of its order: the setting aside touched only the contempt process against the named officers, not the substantive injunctive relief granted on 6th March 2017 restraining construction on the plaintiff's land. The injunction binds until determination of the suit.

p. 2

Legal principles established

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  • Setting aside a Notice to Show Cause does not vacate the underlying injunction, which remains in force until the suit is determined
  • Where alleged contemnors deny responsibility for the acts of contempt rather than deliberately disobeying an order, the case is distinguishable from authorities on wilful disobedience and the court may set aside the Notice to Show Cause

Court orders

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  1. 1.The Notice to Show Cause issued on 1st October 2018 is set aside
  2. 2.The order of injunction of 6th March 2017 remains in force until the matter is heard and determined
  3. 3.Should the injunction be disobeyed, the court shall take appropriate action against the right contemnors

Authorities

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Cases cited (3)

  • Kariuki & 2 Others v Minister for Gender, Sports Culture and Social Services
    HC Misc Civil Application No. 389 of 2004
  • Dr. Fred Matiang'i v Miguna Miguna & 4 Others
    (2018) eKLR
  • Michael Sistu Mwaura Kamau v DPP & 4 others
    (2018) eKLR
Jurisdiction invoked
Inherent jurisdiction of the court over contempt of its orders (injunction issued 6th March 2017 and Notice to Show Cause issued 1st October 2018); no specific provision invoked

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 Morara Ongeri v County Government of Kisii; Abel Sagini & another (Contemnor) [2020] KEELC 3881 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 1st October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3881/eng@2020-01-17

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