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ELCDismissedNotice of Motion dated 27th April 2021 (suit over land parcel Kiambogo/Kiambogo Block 2/2103 (Mwariki))· [2021] KEELC 2045 (KLR)

Esther Nyaboke Ondara v Susan Njeri & 3 others [2021] KEELC 2045 (KLR)

Environment and Land Court
16 September 2021
1,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kakamega (D. O. Ohungo, J) determined the plaintiff's Notice of Motion dated 27th April 2021 seeking orders that the OCS Mwariki Police Station supervise execution of and compliance with temporary injunction and inhibition orders made on 1st July 2020, a declaration that Susan Njeri (1st defendant) and George Njoroge (3rd defendant) were in contempt, their committal to civil jail or a fine, and costs. The application was unopposed; the 2nd defendant indicated it was unaffected, and the court determined it on the papers. The court restated that contempt allegations are serious, carry a higher standard of proof than the balance of probabilities, and require proof of wilful disobedience of a clear, precise order of which the contemnor was aware. It held that the 3rd defendant could not be in contempt because he was only joined by Amended Plaint filed 19th May 2021, over ten months after the order, and so was not party to or addressed by it. As to the 1st defendant, the alleged WhatsApp service used a phone number given to the plaintiff by police, but the applicant failed to demonstrate it was the 1st defendant's last known and used number as required by Order 5 Rule 22C of the Civil Procedure Rules, so there was no proof of service. The court also declined the police supervision prayer, noting it ought to have been sought in the original application and that police have no role in enforcing a restraining injunction. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the contempt application against the 1st and 3rd defendants was made out

Holding

It was not. The 3rd defendant was not party to or addressed by the order of 1st July 2020, and there was no proof of service on the 1st defendant; wilful disobedience was not proved to the heightened standard.

Reasoning

The plaint filed 15th June 2020 named only Susan Njeri and the District Land Registrar as defendants; the 3rd defendant was joined by Amended Plaint filed 19th May 2021, over ten months after the order, so he was not bound by it. Service on the 1st defendant was allegedly effected via a phone number supplied by police, but the applicant could not show it was her last known and used number as Order 5 Rule 22C requires, so there was no proof of service.

p. 2
02

Whether the court should order police supervision of execution of the injunction

Holding

Refused; the prayer belonged in the original application and police have no role in enforcing a restraining injunction.

Reasoning

The court held the prayer ought to have been included in the Notice of Motion dated 15th June 2020, which had already been heard and determined on its merits. Additionally, the Civil Procedure Rules contain ample provisions to secure compliance with injunctions, so ordering police supervision was unnecessary and inappropriate.

p. 3

Legal principles established

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  • Every person aware of a court order made by a court of competent jurisdiction has a non-negotiable duty to obey it until it is discharged
  • The standard of proof in contempt proceedings is higher than the balance of probabilities
  • To succeed in contempt, the applicant must show wilful disobedience of an order clear and precise enough to leave no doubt as to what is to be done or refrained from
  • Service by mobile-enabled messaging application is valid only where the number used is the party's last known and used telephone number

Court orders

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  1. 1.Notice of Motion dated 27th April 2021 dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 22C
  • Contempt of Court ActSection 4

Cases cited (6)

  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Republic v. Ahmad Abolfathi Mohammed & Another
  • Jihan Freighters Ltd v. Hardware & General Stores Ltd
  • A.B. & Another v. R. B.
    [2016] eKLR
Jurisdiction invoked
Inherent jurisdiction over contempt of court orders made in this suit; Civil Procedure Rules (Order 5 Rule 22C on electronic service)

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, "Esther Nyaboke Ondara v Susan Njeri & 3 others [2021] KEELC 2045 (KLR)", Case Analysis (2021). Notice of Motion dated 27th April 2021 (suit over land parcel Kiambogo/Kiambogo Block 2/2103 (Mwariki)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2045/eng@2021-09-16

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