Ogiek Independant Council of South West Mau Forest (Konoin-Bomet) & 7 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 4 others [2021] KEELC 3760 (KLR)
The bottom line
#Kenya's Environment and Land Court found the National Land Commission's Chairman guilty of contempt for ignoring orders to resettle the Ogiek community, with sentencing to follow.
What this practically means
#Executive summary
#Key legal issues
#Legal framework governing contempt proceedings after invalidation of the Contempt of Court Act
The court reverts to the pre-Contempt of Court Act regime, including Section 5(1) of the Judicature Act, Section 29 of the Environment and Land Court Act and Order 40 Rule 3(1) of the Civil Procedure Rules, to avoid a lacuna
The Contempt of Court Act 2016 was declared unconstitutional in Kenya Human Rights Commission v AG. The court held it must revert to the law as it operated before the Act to avoid a lacuna in enforcement of orders, relying on the inherent jurisdiction under Section 3A of the Civil Procedure Act and Section 29 of the Environment and Land Court Act, which criminalises disobedience of the court's orders.
Whether knowledge of an order dispenses with personal service in contempt proceedings
Yes; the institution had knowledge of the orders and the incumbent Chairman, appointed during the pendency of the orders, could not escape liability
Relying on Shimmers Plaza and Kenya Tourist Development Corporation, the court held that knowledge of an order supersedes personal service. The replying affidavit's assertion that the current Chairman was never personally served amounted to an admission; the National Land Commission as an institution had knowledge, and it was not distinct from its Chairman.
Whether the Chairman of the National Land Commission was guilty of contempt
Yes; the 2nd Respondent willfully and deliberately flouted the orders of 27th July 2018 and 24th October 2018
The judgment of 27th July 2018 directed the Commission to identify and resettle the Ogiek community within 10 months, which lapsed on 27th May 2019 without compliance. Contempt being criminal in nature required proof beyond reasonable doubt; the court found sufficient evidence of willful and deliberate disobedience by the 2nd Respondent.
Legal principles established
#- Knowledge of a court order suffices to prove service for purposes of contempt; personal service is not mandatory
- To succeed in civil contempt the applicant must prove the terms of the order, the respondent's knowledge, and failure to comply
- A court order binds the party against whom it is addressed and remains valid and binding until set aside
Court orders
#- 1.The application dated 10th October 2019 is allowed with costs
- 2.Mention on 29th April 2021 for sentencing and further orders
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act and Section 29 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogiek Independant Council of South West Mau Forest (Konoin-Bomet) & 7 others v Principal Secretary Ministry of Lands, Housing and Urban Development & 4 others [2021] KEELC 3760 (KLR)", Case Analysis (2021). Petition No. 6 of 2017 (Application dated 10th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3760/eng@2021-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.