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ELCPartially AllowedNot stated in the judgment (application dated 19th November 2019 in the suit over Tigania/Katharane/1301 & 1323)· [2020] KEELC 3882 (KLR)

Charles Laalia M’ Linkaibua v Joseph Nthilithia M’akwalu; Andrew Kaibunga (Contemptor) [2020] KEELC 3882 (KLR)

Environment and Land Court
29 January 2020
1,025 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot punish someone for disobeying a Kenyan court order unless you can prove the order was actually served on them.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) on a notice of application dated 19th November 2019 by Charles Laalia M'Linkabua, the plaintiff in a boundary dispute between land parcels Tigania/Kitharene/1301 and 1323. The suit had proceeded ex parte and judgment was delivered on 25/07/2018, issuing a mandatory injunction restraining the defendant from destroying the common boundary, directing the sub-county surveyor Meru North to fix the boundary per his report of 9/3/2018, and ordering the plaintiff to meet surveyor's costs and the defendant to pay the suit costs. The plaintiff extracted an order dated 14/01/2019, served it on 2/05/2019, erected a fence along the fixed boundary, and alleged that the respondent, his son Andrew Kaibunga and others destroyed the fence causing loss exceeding Kshs 100,000, and fenced off an access road. The application sought enforcement of the orders through the OCS Muthara Police Station, an injunction against further interference, and security of Kshs 100,000. The respondent did not file a response. The court applied section 5 of the Judicature Act and authorities on contempt procedure (Republic v Kenya School of Law ex parte Juliet Wanjiru Njoroge; Econet Wireless). Although the application was served, the court found no affidavit of service of the extracted order of 14.1.2019, so contempt could not take effect without proof of service. The court partially allowed the application, permitting prayers 2, 3 and 5, directing the respondent and the contemptor to personally appear and show cause why sanctions should not issue, and condemned the respondents to pay costs of the application.

Key legal issues

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01

Procedure for instituting contempt of court proceedings

Holding

Contempt proceedings are governed by section 5 of the Judicature Act and require proof of personal service of the order alleged to have been breached before sanctions can take effect

Reasoning

The court traced the power to punish contempt to section 5 of the Judicature Act, adopted Odunga J's exposition of the committal procedure and Ibrahim J's statement on the obligation to obey court orders. However, on the facts, although the application itself was served, there was no affidavit of service of the extracted order of 14.1.2019. Without proof of service of the order, contempt could not take effect; the court instead issued a show-cause direction.

p. 2
02

Breach of the court's judgment orders of 25/07/2018 (mandatory injunction and boundary fixing)

Holding

The applicant established, through photographs and the surveyor's report, a prima facie case of destruction of the fence and boundary, justifying enforcement directions and a show-cause summons

Reasoning

The surveyor's report of 9/3/2018 had found encroachment by the Defendant, and judgment issued a mandatory injunction and an order for the sub-county surveyor to fix the boundary. The applicant averred the order was extracted and served on 2/05/2019, boundaries fixed and a fence erected, which was allegedly destroyed by the Respondent and one Andrew Kaibunga with machetes. The court accepted the photographic evidence and directed the Respondent and the contemptor to appear and show cause why sanctions should not be imposed.

p. 2

Legal principles established

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  • 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
  • A committal application must be made in the proceedings in which the order was made, set out the grounds fully, identify each alleged act of contempt separately and numerically, be supported by affidavit, and be served personally on the respondent
  • Contempt of court orders cannot take effect without proof that the orders were served

Court orders

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  1. 1.Prayers 2, 3 and 5 in the application allowed
  2. 2.The Respondent and the Contemptor directed to personally appear before the Court to show cause why appropriate sanctions cannot be taken against them as prayed in the application
  3. 3.Respondents condemned to pay costs of the application

Authorities

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Legislation

  • Judicature Act (Cap 8) Laws of KenyaSection 5

Cases cited (2)

  • Republic v Kenya School of Law & 2 others Ex parte Juliet Wanjiru Njoroge & 5 others
    [2015] eKLR
  • Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
Jurisdiction invoked
Section 5 of the Judicature Act (Cap 8) Laws of Kenya - power to punish for contempt of court

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, "Charles Laalia M’ Linkaibua v Joseph Nthilithia M’akwalu; Andrew Kaibunga (Contemptor) [2020] KEELC 3882 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 19th November 2019 in the suit over Tigania/Katharane/1301 & 1323). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3882/eng@2020-01-29

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