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ELCPartially AllowedNotice of Motion dated 16th March, 2020 (appeal pending before the Environment and Land Court, Narok)· [2021] KEELC 2504 (KLR)

Hanib Ayub Suleiman v Mary Lankas [2021] KEELC 2504 (KLR)

Environment and Land Court
14 July 2021
1,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Narok fined a landowner Kshs. 100,000 for deliberately sub-dividing land despite a court order barring any dealings with it.

What this practically means

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Executive summary

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The Appellant/Applicant moved the Environment and Land Court at Narok by a Notice of Motion dated 16th March 2020 seeking that the Respondent, Mary Lankas, be committed to civil jail for six months or fined for contempt of an order barring any dealings with the suit property pending hearing and determination of an appeal against the judgment in Narok CMCC No. 8 of 2007. The Applicant asserted he had deposited Kshs. 480,000 in satisfaction of the decree; that the Respondent's own appeal had been dismissed by the High Court; and that despite service of the stay order on her and her counsel, she caused the suit land to be sub-divided. The Respondent opposed by replying affidavit, contending she was entitled to execute her decree, had obtained title to 4 acres out of the suit parcels on 25th April 2019, and was at liberty to deal with her property. The court restated the elements of contempt: an order clear of ambiguity, knowledge or notice by the contemnor, and a deliberate breach. It found the Respondent neither denied the order's existence nor disputed service, and that with knowledge of it she wilfully and deliberately participated in the sub-division. Relying on Section 29 of the Environment and Land Court Act, the court found the Respondent guilty of contempt, fined her Kshs. 100,000 payable within 60 days, with default committal to civil jail for three months, and directed the parties to maintain the status quo pending the substantive appeal. No costs order is recorded.

Key legal issues

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01

Whether the elements of contempt were established against the Respondent

Holding

The court found the Respondent guilty of contempt: the order barring dealings with the suit land existed, was not denied or its service disputed, and she wilfully and deliberately participated in sub-dividing the suit property

Reasoning

The court restated the settled elements of contempt: clarity of the order, knowledge or notice, and deliberate breach. It found the order barring any dealings with the suit land existed; the Respondent's replying affidavit neither denied its existence nor disputed service; and with knowledge of the order she wilfully proceeded to sub-divide the suit property. The Respondent's assertion of registered ownership did not excuse disobedience of a subsisting order.

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02

What penalty was appropriate for the contempt

Holding

A fine of Kshs. 100,000 payable within 60 days, with default committal to civil jail for 3 months, pursuant to the sanctioning power under Section 29 of the Environment and Land Court Act

Reasoning

Having invoked Section 29 of the Environment and Land Court Act, which prescribes a fine not exceeding Kshs. 20 million or imprisonment not exceeding two years or both for disobedience of orders under the Act, the court exercised its discretion to impose a comparatively modest fine of Kshs. 100,000 with a default custodial term of three months in civil jail.

p. 2

Legal principles established

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  • The conditions for a finding of contempt are that the terms of the order must be clear and free from ambiguity, the contemnor must have knowledge or notice of the order, and the breach must be deliberate
  • Any willful disobedience of a court order by any party constitutes contempt of court
  • Under Section 29 of the Environment and Land Court Act, a person who refuses, fails or neglects to obey an order given under the Act commits an offence punishable by a fine of up to Kshs. 20 million, imprisonment of up to two years, or both

Court orders

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  1. 1.The Respondent was found guilty of contempt of court
  2. 2.The Respondent to pay a fine of Kshs. 100,000 within 60 days of the Ruling, failing which she to be committed to civil jail for a term of 3 months
  3. 3.Parties directed to maintain the status quo obtaining so as to preserve the subject matter and to expedite hearing of the substantive appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3; Order 51 Rule 1
  • Contempt of Court ActSections 4, 5 and 28
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land Court ActSection 29
On appeal from
Chief Magistrate's Court, Narok
Narok CMCC No. 8 of 2007
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 and Order 51 Rule 1 of the Civil Procedure Rules; sections 4, 5 and 28 of the Contempt of Court Act; Article 159(2)(d) of the Constitution of Kenya, 2010

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, "Hanib Ayub Suleiman v Mary Lankas [2021] KEELC 2504 (KLR)", Case Analysis (2021). Notice of Motion dated 16th March, 2020 (appeal pending before the Environment and Land Court, Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2504/eng@2021-07-14

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