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ELCDismissedApplication dated 8th September 2020 in Eldoret ELC suit (Moi's Bridge/Moi's Bridge Block 3 (Mogoon) Plot 2)· [2021] KEELC 3917 (KLR)

Tito Tirop (Suing as the Legal Representative of Philip Chepkwony) v Benjamin Tarus, Isaac Chepkwony, Dorcas Jemeli, Boaz Kosachtai & David Ngetich (Environment & Land Case 82 of 2016) [2021] KEELC 3917 (KLR)

Environment and Land Court of Kenya
23 March 2021
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret dismissed a contempt application because the applicant could not prove the defendants were personally served with, or knew of, the court order.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret by M. A. Odeny J dismissed the plaintiff's application dated 8th September 2020 seeking committal of the defendants to civil jail for up to two years, or a fine of KShs 20 million, for contempt of temporary injunction orders issued on 5th April 2017 restraining interference with Moi's Bridge/Moi's Bridge Block 3 (Mogoon) Plot 2. The court framed three issues: locus standi, lapse of the orders, and contempt. On locus standi, it held the issue had already been determined in the plaintiff's favour in unappealed rulings of 8th June 2016 (Ombwayo J) and 5th April 2017, which subsisted. On lapse, the court held that Order 40 Rule 6 of the Civil Procedure Rules confers a discretion; since the matter was active with no evidence of indolence or hardship, the injunction had not lapsed after twelve months. On contempt, the court reiterated that the applicant must prove clear and unambiguous orders, service or knowledge, and breach to a standard higher than balance of probabilities, bordering on beyond reasonable doubt. The applicant filed no affidavit of service and failed to prove personal service or knowledge of the order on any respondent, so contempt was not established. The application was dismissed with costs to the respondents. Key authorities applied included Basil Criticos, Maxam Limited, Nguruman and Wildlife Lodges.

Key legal issues

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01

Whether the applicant has locus standi

Holding

Locus standi had already been determined in the applicant's favour in prior unappealed rulings; the court declined to revisit it

Reasoning

Justice Ombwayo's ruling of 8th June 2016 held that the plaintiff, having obtained a limited grant ad litem, had capacity to sue, and the ruling of 5th April 2017 confirmed this. Neither ruling was appealed and both subsist, so the issue was res judicata between the parties.

p. 3
02

Whether the injunction orders of 5th April 2017 lapsed under Order 40 Rule 6

Holding

The orders did not lapse; the rule gives the court discretion to allow an injunction to subsist beyond twelve months where there is sufficient reason

Reasoning

Order 40 Rule 6 targets indolent litigants who delay their suits. The court must consider why the trial was not concluded within twelve months and whether special circumstances exist. The matter was active, with no evidence of indolence or hardship from the injunction, and given court backlog challenges these were sufficient reasons for the orders to continue.

p. 4
03

Whether the respondents are guilty of contempt

Holding

No; contempt was not proved to the required standard because service and knowledge of the order were not demonstrated

Reasoning

An applicant for contempt must prove clear and unambiguous orders, binding on the respondent, with a penal notice, and either personal service or knowledge of the order. No affidavit of service was filed and personal service was not proved on any respondent. Given that contempt curtails liberty and borders on criminality, the standard is beyond reasonable doubt, which was not met.

p. 5

Legal principles established

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  • An injunction granted under Order 40 Rule 6 lapses after twelve months only unless the court, in its discretion and for sufficient reason, orders otherwise; the court must interrogate why the suit was not concluded within twelve months and whether special circumstances warrant extension
  • Knowledge of a court order supersedes personal service in contempt proceedings
  • Proof in contempt proceedings is higher than on a balance of probabilities, bordering on the criminal standard
  • A party who knows of a court order is under an unqualified obligation to obey it whether or not it is valid

Court orders

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  1. 1.The applicant's application dated 8th September 2020 seeking committal of the respondents to civil jail for contempt is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Environment and Land Court ActSection 29
  • Civil Procedure Rules, 2010Order 5
  • Civil Procedure Rules, 2010Order 40 Rule 6
  • Evidence Act, Cap 80Section 78
  • Law of Succession ActSection 82(a)

Cases cited (18)

  • Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another
    (2005) KLR 828
  • Refrigerator and Kitchen Utensils Ltd vs Gulabchand Popatlal Shah & Others
    Civil Application No. 39 of 1990
  • Heelmore vs Smith
    (1886) L.R 35 C.D 455
  • Johnson vs Grant
    1923 SC 789
  • Jane Chemweno vs Paul K. Chemweno
    Case No. 411 of [2016] eKLR
  • Philemon Songok v Pauline Keberei Alias Pauline Jebet Rotich and 2 others
    [2018] eKLR
  • Ochino & Another vs Okombo & 4 Others
    (1989) eKLR
  • Shimmer's Plaza Ltd vs NKB
    [2015] eKLR
  • Basil Criticos vs Attorney General and 8 others
    (2012) eKLR, Nairobi Misc. Civil Application No. 316 of 2010
  • Martin Wambora case
  • Joseph Oginga Onyoni and 2 Others v Attorney General and 2 others
    [2016] eKLR
  • Troustik Union International & Another vs Mbeyu & Another
    [1993] eKLR
  • Omari Kaburi vs ICDC
    [2007] eKLR
  • Maxam Limited & 2 others v Heineken East Africa Import Co. Ltd & 2 others
    [2017] eKLR
  • Nguruman Ltd v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Wildlife Lodges Ltd vs County Council of Narok and Another
    [2005] 2 EA 344
  • Josephine Muthinja vs Lilian Muthamia and 2 others
  • Mwangi Mangondu vs Nairobi City Commission
    Civil Appeal No. 95 of 1998
Jurisdiction invoked
Environment and Land Court Act (contempt jurisdiction under Section 29); application for committal for contempt of court orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tito Tirop (Suing as the Legal Representative of Philip Chepkwony) v Benjamin Tarus, Isaac Chepkwony, Dorcas Jemeli, Boaz Kosachtai & David Ngetich (Environment & Land Case 82 of 2016) [2021] KEELC 3917 (KLR)", Case Analysis (2021). Application dated 8th September 2020 in Eldoret ELC suit (Moi's Bridge/Moi's Bridge Block 3 (Mogoon) Plot 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3917/eng@2021-03-23

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