Warsame Omar Farah v Hathar Haji Abdi & 4 others [2021] KEELC 2227 (KLR)
The bottom line
#A Kenyan court refused to jail parties accused of defying land orders because the applicant could not prove who was behind the alleged breach.
What this practically means
#Executive summary
#Key legal issues
#Whether contempt of the court's injunction and status quo orders was proved
The application was dismissed because the Plaintiff neither proved an eviction nor linked the Defendants to the bulldozer allegedly parked on the suit land
The orders of 25/11/2020 and 8/12/2020 restrained eviction and preserved the status quo until 15/2/2021. The Plaintiff did not demonstrate that he was evicted from the portion he occupied. The photographs were unclear, printed in black and white, and did not show where or when they were taken. The 1st and 2nd Defendants denied involvement, and the 4th Defendant's affidavit noted the absence of the bulldozer's registration number. Without proof of a deliberate breach by the named individuals, committal could not issue.
Whether contempt proceedings may proceed after the declaration of unconstitutionality of the Contempt of Court Act, 2016
The Plaintiff accepted the Act's invalidity but urged the court to apply the law in force before its enactment; the court did not found dismissal on this ground alone, instead deciding on the evidentiary failure
The 1st Defendant argued the application was based on non-existent law because the Contempt of Court Act No. 46 of 2016 was declared invalid by Mwita J on 29/11/2018. The Plaintiff did not dispute this but asked the court to rely on pre-Act law, citing Section 63 of the Civil Procedure Act. The court resolved the matter on the merits of proof rather than the statutory basis.
Legal principles established
#- A party seeking committal for contempt must prove, among other elements, a nexus between the alleged contemnor and the contemptuous act
Court orders
#- 1.The application dated 18/1/2021 is dismissed
- 2.Costs being in the cause
- Jurisdiction invoked
- Inherent civil jurisdiction over contempt of court orders issued in a suit before the court (reliance on Section 63 of the Civil Procedure Act); Contempt of Court Act, 2016 declared invalid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warsame Omar Farah v Hathar Haji Abdi & 4 others [2021] KEELC 2227 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 18/1/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2227/eng@2021-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.