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ELCPartially Allowed· [2021] KEELC 4088 (KLR)

Beatrice Bonchere Nyaruri v Abel Hayora Nyaruri & another [2021] KEELC 4088 (KLR)

Environment and Land Court
4 March 2021
1,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nakuru dismissed a bid to override earlier orders, confirming that court orders must be obeyed until properly reviewed, varied or overturned on appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (J M Mutungi, J) determined two competing applications arising from an inter-parties dispute over land parcel Njoro/Ngata Block 2/1613 (Kirobon). On 18th November 2020 the court had ordered maintenance of the status quo, leaving the plaintiff in possession of and with access to the main house while permitting the 1st Defendant to use the land. Two days later the 1st Defendant moved by Notice of Motion dated 20th November 2020 seeking to restrain the plaintiff from accessing the main house and to compel her to vacate it; the plaintiff did not respond. The plaintiff in turn applied by Notice of Motion dated 7th December 2020 for an order that the O.C.S Menengai East Police Station provide security to enable her occupation of the main house in compliance with the earlier orders. Both applications were canvassed by written submissions; only the plaintiff filed submissions. Relying on authority including Wildlife Lodges Ltd v County Council of Narok and Central Bank of Kenya v Ratilal Automobiles, the court held that the orders of 18th November 2020 remained valid, not having been appealed, reviewed or varied, and that a party cannot pick and choose which orders to obey. The 1st Defendant's application was found to circumvent the earlier orders and to be an abuse of process, and was dismissed. The plaintiff's application was allowed in terms of prayer (2), with the OCS directed to provide security to enforce compliance. Costs of both applications were to be in the cause. Orders were signed and delivered virtually at Nakuru on 4th March 2021.

Key legal issues

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01

Whether the 1st Defendant's application to restrain the Plaintiff from accessing the main house could be entertained while valid orders of 18th November 2020 remained in force

Holding

The application was dismissed as an abuse of process; a party cannot seek to vacate existing orders without following the prescribed review procedure, and standing orders must be obeyed.

Reasoning

The court noted that on 18th November 2020 it had ordered status quo, leaving the plaintiff in possession of and with access to the main house while the 1st Defendant used the land. The defendant's application, filed two days later, sought to defeat those orders. The court invoked authority that obedience to court orders is plain and unqualified until discharge, and that a party cannot self-select which orders to obey. Since the orders had not been appealed, reviewed or varied, the defendant was bound to comply, and the application was an abuse of process.

p. 2
02

Whether the O.C.S Menengai East Police Station should be ordered to provide security to enforce the orders of 18th November 2020

Holding

The plaintiff's application dated 7th December 2020 was allowed in terms of prayer (2); the OCS was directed to provide security to ensure compliance with the earlier orders.

Reasoning

The plaintiff deponed that she was unable to access the premises, and that averment was not controverted by the 1st Defendant, who filed neither a response nor submissions. The court held that an order directing the OCS to provide security was necessary to enforce its orders of 18th November 2020 and to secure the plaintiff's occupation of the main house as earlier ordered.

p. 2

Legal principles established

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  • A party is under a plain and unqualified obligation to obey a court order until it is discharged, and may not choose which orders to obey.
  • Court orders must be obeyed as framed, and compliance cannot be withheld pending review or appeal.

Court orders

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  1. 1.The 1st defendant's application dated 20th November 2020 is dismissed
  2. 2.The plaintiff's application dated 7th December 2020 is allowed in terms of prayer (2), directing the O.C.S Menengai East Police Station to provide security to ensure compliance with the orders issued on 18th November 2020
  3. 3.The costs of the applications shall be in the cause

Authorities

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Cases cited (4)

  • DLK vs CM (2020) eKLR
    (2020) eKLR
  • Standard Resource Group Ltd vs Ali Badawy & 2 others (2017) eKLR
    (2017) eKLR
  • Wildlife Lodges Ltd vs. County Council of Narok and Another (2005) 2 EA 344 (HCK)
    (2005) 2 EA 344 (HCK)
  • Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006
    Civil Application No. Nai. 247 of 2006
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property Njoro/Ngata Block 2/1613 (Kirobon); no specific constitutional or statutory provision invoked in the ruling.

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, "Beatrice Bonchere Nyaruri v Abel Hayora Nyaruri & another [2021] KEELC 4088 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4088/eng@2021-03-04

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