Christopher Kurutyon Lonyala & 27 others; Ekitale Ekal Lodio & 12 others (Interested Parties) v Cabinet Secretary Ministry of Lands and Settlement & 10 others [2020] KEELC 3967 (KLR)
The bottom line
#A Kenyan court refused to jail people for defying a court order because the applicant couldn't prove the order was served and that they deliberately broke it.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a contempt application
A contempt application requires proof of an order, knowledge of the order (actual or imputed), and wilful, deliberate disobedience; the burden of proof is strict because contempt is quasi-criminal.
The court relied on Hadkinson v Hadkinson and Jacinta Njeru Kaitha for the obligation to obey court orders, and on Michael Sistu Mwaura Kamau and Basil Criticos for the elements of contempt, holding that knowledge can be imputed and personal service is not mandatory in all cases. It stressed the quasi-criminal nature of contempt and that all proper steps of proof must be followed.
Service and knowledge as against the 1st-3rd respondents
The application failed against the 1st-3rd respondents because no sworn affidavit evidence of personal service was annexed and their knowledge of the order could not be imputed given their lack of participation in the proceedings.
Since the 1st, 2nd and 3rd respondents (police officers) did not participate in the proceedings, the court could not impute knowledge and had to rely on proof of personal service. The applicant merely alleged service without annexing an affidavit of service, so the application could not stand against them.
Contempt by the 4th and 5th respondents
Although the 4th and 5th respondents were deemed to have knowledge of the order through their counsel's presence when the ruling was delivered, there was no evidence of any wilful contravention of the order by them.
Their counsel, Mr Karani, was present in court on 3/10/2019 when the ruling was read, so service need not be proved. However, no evidence was attached showing that they committed acts amounting to wilful and deliberate contravention of the status quo order, so the contempt charge failed on the merits.
Legal principles established
#- The essential conditions for conviction for contempt are a court order, knowledge of it, and wilful and deliberate disobedience; knowledge may be imputed so personal service is not mandatory in all cases
- Knowledge supersedes personal service where a party clearly acts with knowledge of a court order
- Contempt proceedings are quasi-criminal and every procedural step must be scrupulously followed
Court orders
#- 1.The application dated 2/12/2019 is dismissed with costs to the respondents
- 2.Judgment in the main matter to be delivered on 30/6/2020
- Jurisdiction invoked
- Order 1 Rule 8 and Order 45 Rules 1, 2, 3, 5 and 6 of the Civil Procedure Rules; Contempt of Court Act 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Kurutyon Lonyala & 27 others; Ekitale Ekal Lodio & 12 others (Interested Parties) v Cabinet Secretary Ministry of Lands and Settlement & 10 others [2020] KEELC 3967 (KLR)", Case Analysis (2020). Notice of Motion dated 2/12/2019 (arising from a petition before the Environment and Land Court, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3967/eng@2020-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.