Isaac Kipkemboi Chesire & 4 others v Joseph Kimitei Kwambai & 3 others; Rose Cheruiyot Rono & 3 others (Interested Parties) [2021] KEELC 410 (KLR)
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
#Key legal issues
#Existence of a valid subsisting order as a precondition to contempt
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
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.
Lis pendens and alienation of suit property
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
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.
Burden of proving service of exparte orders
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
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.
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
#- 1.1st 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.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.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.All three applications dismissed with each party bearing their own costs
- 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.
- Damarice Njeri Kaniaru v Daniel Mbugua Mwangi & another; Titus Kamanja Kaniaru (Intended Substituted Party/Applicant) [2021] KEELC 2096 (KLR)[2021] KEELC 2096 (KLR)23 Jul 2021
- AGN v FNK & Others (substitution and guardianship application)[2018] KEHC 1973 (KLR)28 Nov 2018
- M M v Nancy Kanugu Mbaya (legal administratix the Estate of Ayub Mbaya Mwongera) [2018] KEELC 2568 (KLR)[2018] KEELC 2568 (KLR)11 Jul 2018
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.