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ELCPartially AllowedKisumu ELC No. 46 of 2020· [2021] KEELC 840 (KLR)

Richard Otieno & 9 others v Michael Otieno Wagude & another [2021] KEELC 840 (KLR)

Environment and Land Court
19 November 2021
AOANTONY OMBWAYO
2,996 words in judgment
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The bottom line

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A Kenyan land buyer used a status quo court order to retake land he had already been evicted from - and went to jail for contempt.

What this practically means

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Executive summary

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The 1st defendant, Michael Otieno Wagude, moved the Environment and Land Court in Kisumu by a Notice of Motion dated 11th August 2021 seeking to have the 1st plaintiff, Richard Otieno, cited for contempt of a court order dated 1st September 2020 in which Lady Justice M.A. Odeny granted status quo over land parcel KISUMU/DAGO/566 pending the ruling in Kisumu ELC No. 13 of 2015. The applicant deposed, through his advocate Washington Athung'a, that the 1st plaintiff and his father had been evicted pursuant to a judgment in ELC No. 13 of 2015 but that the 1st plaintiff re-entered the land, constructed illegal structures, farmed it, and used violence to deny the applicant access. The respondent opposed, arguing the application was defective under Order 51 Rule 13(2) of the Civil Procedure Rules, sub judice to a similar application filed on 26th October 2020, that the eviction order relied on originated from a different suit and was never served on him, and that contempt must be proved to the higher quasi-criminal standard. The court framed one issue: whether the 1st respondent was in contempt. Relying on Econet Wireless and Mahinderjit Singh Bitta on the duty to obey court orders, the court found that at the time the status quo order was issued the 1st plaintiff and his father had already been evicted, so using that order to regain possession was contemptuous and an abuse of process. The earlier application had never been fixed for hearing and caused no prejudice. The court convicted the 1st plaintiff of contempt and sentenced him to 30 days' imprisonment or, in the alternative, a fine of Kshs 50,000, issued warrants of arrest, and awarded costs of the application to the 1st defendant. The ruling was delivered electronically due to COVID-19 measures.

Key legal issues

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01

Whether the 1st Respondent was in contempt of the order of 1st September 2020 maintaining status quo

Holding

The court found the 1st plaintiff in serious breach and contempt of the order and sentenced him to 30 days in jail or a fine of Kshs 50,000

Reasoning

The court discerned that the order of 1st September 2020 granted status quo at a time when the 1st plaintiff and his father had already been evicted from KISUMU/DAGO/566. The respondent used the order to regain possession, cultivate and construct illegal structures, which the court held to be contemptuous and an abuse of process. The court was satisfied the applicant had specified the order defied and that no prejudice arose from the pending earlier contempt application dated 26th October 2020.

p. 4
02

Whether the application was defective for non-compliance with Order 51 Rule 13(2) of the Civil Procedure Rules and sub judice to a pending earlier contempt application

Holding

The court found the earlier application dated 26th October 2020 was never fixed for hearing and that no prejudice would be suffered by determining the instant application

Reasoning

The respondent argued the application was fatally defective for failing to bear the mandatory words of Order 51 Rule 13(2) and that it was sub judice to a similar application dated 26th October 2020 seeking to cite all respondents. The court examined that application, confirmed it had never been fixed for hearing, and held that no prejudice would be suffered by either party if it determined the current application.

p. 4

Legal principles established

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  • It is the plain and unqualified obligation of every person against whom a court order is made to obey it unless and until it is discharged, even where the person believes the order to be irregular or void
  • A party who uses a status quo order to regain possession when the status quo at the time of the order was that he had already been evicted is in contempt and abuses the court process

Court orders

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  1. 1.The 1st plaintiff/respondent is found in serious breach and contempt of the court order of 1st September 2020
  2. 2.The 1st plaintiff/respondent to be jailed for a period of 30 days or, in the alternative, pay a fine of Kshs 50,000
  3. 3.Warrants of arrest to issue
  4. 4.Costs of the application to the 1st defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure Rules, 2010Order 51 Rule 13(2)

Cases cited (2)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR 828
  • Mahinderjit Singh Bitta v Union of India & Others
    A NO. 10 of 2010 (13th October, 2011)
Jurisdiction invoked
Contempt of court orders issued in Kisumu ELC No. 46 of 2020, under the Civil Procedure Rules (Order 51 Rule 13)

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, "Richard Otieno & 9 others v Michael Otieno Wagude & another [2021] KEELC 840 (KLR)", Case Analysis (2021). Kisumu ELC No. 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/840/eng@2021-11-19

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