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ELCDismissedNot stated in judgment (application dated 18/1/2021)· [2021] KEELC 2227 (KLR)

Warsame Omar Farah v Hathar Haji Abdi & 4 others [2021] KEELC 2227 (KLR)

Environment and Land Court
9 June 2021
1,884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff applied by notice dated 18/1/2021 for Hathar Haji Abdi (1st Defendant), his son Abdirahim Haithar Abdi acting for the 2nd Defendant, and Major General Mohammed Badi for the 4th Defendant to be committed to prison for six months for contempt of orders made on 25/11/2020 and 8/12/2020, which restrained eviction of the Plaintiff from the portion he occupied on L.R. No. 37/714 and maintained the status quo until 15/2/2021. The Plaintiff alleged that on 15/1/2021 these parties caused a bulldozer to be parked on the suit land blocking the frontage of his property, and sought an order to purge the contempt by removing the bulldozer and restoring the status quo. The 1st and 2nd Defendants denied involvement and argued the application was defective as the Contempt of Court Act, 2016 had been declared unconstitutional by Mwita J; the 4th and 5th Defendants contended there was no evidence linking them to the alleged acts. The Plaintiff accepted the Act's invalidity but relied on pre-Act law and Section 63 of the Civil Procedure Act, and set out the settled ingredients for proving contempt. The court held that the Plaintiff failed to prove the Defendants evicted him and failed to establish any nexus between them and the bulldozer, the photographic evidence being unclear. The application was dismissed with costs in the cause. Delivered virtually at Nairobi on 9 June 2021 by K. Bor, Judge.

Key legal issues

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01

Whether contempt of the court's injunction and status quo orders was proved

Holding

The application was dismissed because the Plaintiff neither proved an eviction nor linked the Defendants to the bulldozer allegedly parked on the suit land

Reasoning

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.

p. 2
02

Whether contempt proceedings may proceed after the declaration of unconstitutionality of the Contempt of Court Act, 2016

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • A party seeking committal for contempt must prove, among other elements, a nexus between the alleged contemnor and the contemptuous act

Court orders

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  1. 1.The application dated 18/1/2021 is dismissed
  2. 2.Costs being in the cause

Authorities

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Legislation

  • Contempt of Court ActWhole Act (No. 46 of 2016)
  • Civil Procedure ActSection 63
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

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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, "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.