Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the extract (Eldoret Environment and Land Court suit over Kiplombe/Kiplombe/Block 10 (Growel) parcels 43, 44, 45, 310 and 309)· [2021] KEELC 410 (KLR)

Isaac Kipkemboi Chesire & 4 others v Joseph Kimitei Kwambai & 3 others; Rose Cheruiyot Rono & 3 others (Interested Parties) [2021] KEELC 410 (KLR)

Environment and Land Court
15 December 2021
7,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

#

The Eldoret Environment and Land Court fined a landowner Kshs. 200,000 for selling land while a lawsuit over it was still in court, but threw out three contempt applications.

What this practically means

#

Executive summary

#
Three contempt applications arising from a long-running land dispute over Kiplombe/Kiplombe/Block 10 (Growel) parcels 44, 45 and 310. The 1st plaintiff sought cancellation of titles 538–551 (subdivisions of parcel 44) and committal of the 1st defendant and the Land Registrar for disobeying orders of 29 May 2009; the 4th plaintiff sought committal of the 1st defendant for invading the suit properties and fencing them in March 2021 in breach of status quo orders; the 3rd plaintiff sought committal of the 1st, 3rd and 4th Interested Parties and Susan Korir for fencing off the land after the status quo order of 22 March 2021. The 1st defendant denied service of the orders and contended the 2009 injunction had lapsed; the Land Registrar argued the injunction lapsed under Order 40 Rule 6 and was never registered; the Interested Parties denied service and any contempt. Following a site visit by the Deputy Registrar on 23 April 2021, the court framed five issues. It held that contempt requires proof of the order's terms, the contemnor's knowledge and non-compliance, and that the ex-parte injunction of 29 May 2009 lapsed on 29 May 2010 for want of proof of service and prosecution, so no valid order existed to be breached. However, invoking the doctrine of lis pendens, the court found the 1st defendant in contempt for subdividing parcel 44 and selling parcels 541 and 544 during the pendency of the suit. He was fined Kshs. 200,000, defaulting to six months' imprisonment; the register was ordered rectified by cancelling post-2009 transfers and restoring ownership to him; an inhibition order issued over the subdivided parcels until determination of the suit. All three motions were dismissed with each party bearing their own costs.

Key legal issues

#
01

Existence of a valid subsisting order as a precondition to contempt

Holding

The ex-parte injunction of 29 May 2009 lapsed on 29 May 2010 under Order 40 Rule 6, so subsequent 'status quo' extensions were made in error and no valid order existed to be breached

Reasoning

The order of 29 May 2009 was ex-parte and interim. The applicants bore the burden of proving service and prosecution inter-partes; failing that, the injunction lapsed after 12 months under Order 40 Rule 6 of the Civil Procedure Rules. Later extensions of 'status quo' were therefore made in error and could not found contempt.

p. 6
02

Lis pendens and alienation of suit property

Holding

The 1st defendant's subdivision of parcel 44 and sale of parcels 541 and 544 during the pendency of the suit violated the lis pendens doctrine and amounted to contempt

Reasoning

The suit was filed in May 2009, yet the 1st defendant subdivided parcel 44 and sold portions 541 and 544 to third parties, purporting to grant rights over the suit property pendente lite. His excuse of being a retired civil servant was rejected as insufficient. The court invoked the doctrine as explained in Bellamy v Sabine and Mawji v US International University.

p. 7
03

Burden of proving service of exparte orders

Holding

Plaintiffs failed to prove service of the 29 May 2009 order and inter-partes hearing notice on the 1st defendant as required under section 108 of the Evidence Act

Reasoning

The plaintiff applicants bore the burden of proving service of the order and notice of the inter-partes hearing on the 1st defendant. Without that proof, the injunction lapsed and could not sustain contempt proceedings.

p. 6

Legal principles established

#
  • A court's contempt power is inherent and statutory; to prove civil contempt one must show the terms of the order, the alleged contemnor's knowledge of them, and non-compliance
  • An ex-parte interlocutory injunction lapses after twelve months unless extended under Order 40 Rule 6 of the Civil Procedure Rules
  • The burden of proving service of an exparte order lies on the party seeking to found contempt on it
  • Alienation of suit property pendente lite offends the doctrine of lis pendens and may amount to contempt

Court orders

#
  1. 1.1st defendant found in contempt and fined Kshs. 200,000.00 payable in 7 days, in default warrant of arrest and committal to six months imprisonment
  2. 2.Land Registrar Uasin Gishu directed to rectify the register under section 80 of the Land Registration Act by cancelling all transfers on parcels subdivided from Kiplombe/Kiplombe/Block 10 (Growel) 44 done after 2009 and restore ownership to Joseph Kimitei Kwambai
  3. 3.An inhibition order under section 68 of the Registration of Land Act issued and registered over all parcels subdivided from Kiplombe/Kiplombe/Block 10 (Growel) 44 until the suit is heard and determined
  4. 4.All three applications dismissed with each party bearing their own costs

Authorities

#

Legislation

  • Judicature ActChapter 8, section 3(1)
  • Environment and Land Court ActNo. 19 of 2011
  • Civil Procedure RulesOrder 40 Rule 6
  • Evidence ActChapter 80, section 108
  • Land Registration ActNo. 3 of 2012, section 80
  • Registration of Land ActNo. 3 of 2012, section 68

Cases cited (4)

  • Samuel N Mweru and others vs the National Land Commission and 2 others
    [2020] eKLR
  • Joseph Tireito v Jacob Kipsugut Arap Langat & 2 others
    [2018] eKLR
  • Bellamy vs Sabine
    [1857] 1 De J 566
  • Mawji vs US International University & Another
    [1976] KLR 185
Jurisdiction invoked
Inherent and statutory power to punish contempt (Judicature Act Cap 8; Environment and Land Court Act No. 19 of 2011)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Isaac Kipkemboi Chesire & 4 others v Joseph Kimitei Kwambai & 3 others; Rose Cheruiyot Rono & 3 others (Interested Parties) [2021] KEELC 410 (KLR)", Case Analysis (2021). Not stated in the extract (Eldoret Environment and Land Court suit over Kiplombe/Kiplombe/Block 10 (Growel) parcels 43, 44, 45, 310 and 309). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/410/eng@2021-12-15

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