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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 80 (KLR)

Dave Kipkorir Langat v District Physical Planning Officer & 4 others [2021] KEELC 80 (KLR)

Environment and Land Court of Kenya
2 December 2021
4,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court found Kericho land officials guilty of contempt for defying court orders, but refused to evict third parties who were never sued.

What this practically means

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Executive summary

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Following a judgment delivered on 5th May 2015 and a decree issued on 16th July 2015 in which the court declared the resurvey, re-amendment of the PDP, subdivision of LR No. Kericho Municipality Block 5/159 into 40 by 80 sq. feet plots and intended allocation to third parties unconstitutional under Articles 40 and 47(1), the Petitioner filed two contempt and enforcement applications. The first, dated 13th July 2018, sought committal of the Director of Physical Planning, the District Planning Officer Kericho, Mr. Keitany, the District Surveyor Mr. Kibowen, the District Land Officer Mr. Patroba Omollo and the Kericho Land Registrar for contempt. The Respondents denied contempt, contending the application was incompetent, premised on the nullified Contempt of Court Act, and that they were never personally served. The court held that contempt now falls under Section 5 of the Judicature Act but that the wrong statutory citation was not fatal, applying Article 159 and Order 51 rule 10. It found valid, unambiguous orders existed and had been served, and that knowledge rather than personal service suffices. Finding the Respondents had wilfully defied the orders, the court allowed the first application with costs and directed that the contemnors be brought for sentencing, failing which a warrant of arrest would issue. The second application, dated 12th February 2021, sought eviction of the Respondents and third parties with police security for the bailiff. The court declined, holding there was no proof the Respondents occupied the land and that third parties in occupation, not being parties to the suit, could only be evicted via a fresh suit consistent with Article 50(1). That application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the application premised on the nullified Contempt of Court Act was fatally defective

Holding

No - dismissing for want of form would offend Article 159 and Order 51 rule 10; the wrong statutory basis was not fatal

Reasoning

The court noted the Contempt of Court Act had been nullified and contempt now falls under Section 5 of the Judicature Act. However, applying Article 159(2)(d) and Order 51 rule 10(2), no application should be defeated on a technicality or want of form that does not affect substance. The notice of motion set out the grounds, the alleged contempt and supporting evidence, causing no prejudice to the Respondents, so the objection was overruled.

p. 2
02

Whether the Respondents were in contempt of the orders of 5th May 2015

Holding

Yes - the Respondents knowingly and wilfully defied valid orders by resurveying the land, re-amending the PDP and subdividing and allocating the Applicant's property

Reasoning

The court found valid, clear and unambiguous restraining orders existed and had been served (evidenced by annexures DKL 1A, 1B and the Affidavit of Service DKL 2). Mr. Partoba Omollo's affidavit confirmed receipt of the judgment. The Respondents' acts of resurvey, re-amendment of the PDP, subdivision into 40 by 80 sq. feet plots and allocation to third parties ran afoul of the orders, warranting committal for sentencing.

p. 4
03

Whether eviction orders could issue as consequential relief

Holding

No - the Respondents were not shown to be in occupation and third parties in occupation were not parties to the suit

Reasoning

The court found no proof that the contemnors occupied the suit land, and the third parties in occupation had not been sued. Citing Article 50(1) on fair hearing, the court held that a fresh suit against the occupiers is the proper avenue, after which eviction could be granted on merits.

p. 5

Legal principles established

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  • Knowledge of the existence of a court order, rather than strict personal service, suffices to found contempt proceedings
  • To succeed in civil contempt, the applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply
  • A court order binds the party against whom it is addressed until set aside and is to be complied with
  • An applicant can only enforce court orders against the persons he sued; eviction of third parties requires a fresh suit

Court orders

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  1. 1.The Notice of Motion dated 13th July 2018 succeeds with costs; the Respondents are found in contempt of the orders of 5th May 2015.
  2. 2.The contemnors shall be brought before this court for sentencing and in the event that they do not bring themselves, a warrant of arrest shall issue.
  3. 3.The Notice of Motion dated 12th February 2021 seeking eviction orders and police security is dismissed.
  4. 4.No orders as to costs on the second application.

Authorities

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Legislation

  • Contempt of Court ActSections 27, 28, 29, 30
  • Judicature ActSection 5(1)
  • Civil Procedure RulesOrder 51 Rule 1; Order 51 rule 10(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of KenyaArticles 10(1), 10(2)(a), 40, 47(1), 50(1), 159, 159(1), 159(2)(d)
  • Environment and Land Court ActSection 29

Cases cited (9)

  • Kenya Human Rights Commission vs Attorney General & Another
    (2018) eKLR
  • Econet Wireless Kenya Ltd vs. Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Kristen Carla Burchell vs Barry Grant Burchell
    Eastern Cape Division Case No. 364 of 2005
  • Stewart Robertson vs. Her Majesty's Advocate
    2007 HCAC63
  • Hadkinson vs. Hadkinson
    (1952) ALL ER 567
  • Eliud Muturi Mwangi (Practicing in the name and style of Muturi & Co. Advocates) vs LSG Lufthansa Services Europa/Africa GMBH & Another
    (2015) eKLR
  • Mercy Nduta Mwangi T/A Mwangi Kengára & Co Advocates vs Invesco Assurance Company Limited
    [2019] eKLR
Jurisdiction invoked
Contempt of court jurisdiction under Section 5(1) of the Judicature Act; Sections 27, 28 and 30 of the (nullified) Contempt of Court Act; Section 29 of the Environment and Land Court Act; Order 51 Rule 1 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

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, "Dave Kipkorir Langat v District Physical Planning Officer & 4 others [2021] KEELC 80 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/80/eng@2021-12-02

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