Mazera Boma alias Kanybwe & 3 others v Nyae Mrisa Tsuma & another [2021] KEELC 1466 (KLR)

The appellants argued the motion was fatally defective for not stating grounds. The court found on the face of the record that the motion expressly grounded itself on the annexed affidavit of the 1st plaintiff and listed grounds. The preliminary objection argument therefore failed and the application was properly before the trial court.

Counsel argued the interim orders of 28th November 2018 lapsed upon the ruling of 11th December 2018. The court held that obedience is owed to temporary and confirmed orders alike, found no evidence of expiry or variation, and noted the appellants' own application to set aside the 11th December 2018 ruling proved their knowledge of the orders.

The affidavit of service raised a presumption of proper service which the appellants never rebutted, the service issue not having been raised in the lower court. Relying on Shimmers Plaza, notice is satisfied where the person is represented by counsel in court, as the appellants were.

Relying on Mutitika v Baharini Farm and Jihan Freighters, the court adopted the intermediate standard. The trial magistrate relied on the affidavits sworn together with photographic evidence, and the appellants' own replying affidavit admitted cultivation and bush-clearing on the suit land, establishing willful disobedience of a subserving preservation order.

The court set out Section 10 of the Magistrates Act, confirming the trial court's jurisdiction to conduct contempt proceedings and punish willful disobedience of judgments, decrees, directions or orders, subject to a right of appeal as if in ordinary original criminal jurisdiction.