Peter Marira Gikonyo &14; others v National Land Commission & 8 others; Chief Land Registrar & another (Interested Parties); Adamson Bugei OCPD Buruburu& 8 others (Respondent/Contemnor) [2020] KEELC 3960 (KLR)
The bottom line
#A Kenyan court held two people in contempt for defying a land injunction, but cleared police and others because the order was never served on them.
What this practically means
#Executive summary
#Key legal issues
#Whether contempt was established against the police officers (9th, 10th, 11th respondents) and the Deputy County Commissioner
No contempt established; the orders were directed only at the 8th respondent and were not served on them.
The injunction restrained only the 8th respondent and its directors, agents, servants and employees. The police were never ordered to enforce the order or to provide security, and the affidavits of service showed no service on the police officers or the Deputy County Commissioner. Nor was there evidence that the officers acted as agents of the 8th respondent. Their refusal to protect the petitioners, however reprehensible, could not amount to contempt of an order that did not bind them.
Whether contempt was established against the 12th and 13th respondents, members of the 8th respondent company
Yes; the company was served, the respondents were its members and thus aware of the order, and they committed the alleged acts during the subsistence of the order.
The affidavit of service sworn by Charles Midenga on 3rd September, 2019 proved service on the 8th respondent, and the order bound the company together with its members, directors, agents and servants. The 8th respondent did not deny that the 12th and 13th respondents were its members, and neither of them filed any affidavit denying the alleged acts. Their removal of the container and coordination of demolitions occurred in December 2019 and April 2020 while the order was in force.
Whether contempt was established against the 14th and the 15th, 16th and 17th respondents
No; no proof of service, awareness of the order, or agency for the 8th respondent.
Knowledge of the order is an essential ingredient of contempt. There was no evidence that the lorry owner knew of the order or was served, and although the 15th to 17th respondents were alleged gang members, the order did not bind them, was not served on them, and there was no evidence that they acted as agents of the 8th respondent.
Legal principles established
#- A person against whom a court order is made is under a plain and unqualified obligation to obey it unless and until it is discharged.
- To sustain committal for contempt, the order disobeyed must be clear and precise, the contemnor must have willfully and deliberately disobeyed an order he was aware of, and the standard of proof is higher than balance of probabilities but not beyond reasonable doubt.
- The burden was on the petitioners to demonstrate service of the order on the alleged contemnors or their awareness of it and deliberate disobedience.
Court orders
#- 1.The Deputy Registrar to issue summons for service upon the 12th and 13th respondents to appear before the court on a date to be fixed to show cause why they should not be committed to civil jail for contempt of the orders made on 20th August, 2019 and 29th October, 2019
- 2.The application dismissed as against the other respondents/alleged contemnors
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Inherent jurisdiction to punish contempt of court orders issued in the pending petition; no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Marira Gikonyo &14; others v National Land Commission & 8 others; Chief Land Registrar & another (Interested Parties); Adamson Bugei OCPD Buruburu& 8 others (Respondent/Contemnor) [2020] KEELC 3960 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion application dated 29th April, 2020 in an earlier petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3960/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.