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ELCDismissedNot stated in judgment (Constitutional Petition, Bungoma)· [2021] KEELC 4578 (KLR)

Richard K. Sibilibili v Kenya Forest Service & 9 others [2021] KEELC 4578 (KLR)

High Court of Kenya
28 January 2021
BOBoaz N. Olao
4,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed an injunction and contempt case because the evictions had already happened and the officials were never personally served with the court orders.

What this practically means

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Executive summary

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This ruling of the High Court at Bungoma (Boaz N. Olao, J) determined two applications arising from a constitutional petition filed by Richard K. Silibilibi on behalf of the Cheptais Community Forest Association and residents of Chebombai area. The Petitioner alleged that in June 2020 the Respondents evicted over 200 families from Chebombai, burnt houses and destroyed crops. By a Notice of Motion dated 7th October 2020 he sought a temporary injunction restraining ongoing evictions; ex-parte orders had been granted on 7th October 2020. He also sought, by a Notice of Motion dated 26th October 2020, the citation of eight named officials of the 1st and 2nd Respondents for contempt and committal to civil jail for six months for allegedly disobeying those orders. The court held that a temporary injunction cannot restrain an event that has already occurred; the eviction and destruction had taken place four months before filing, so the application was overtaken by events and the Giella principles need not be considered. The ex-parte orders were discharged. On contempt, the court found the injunctive orders were incapable of being disobeyed, and further that the named contemnors, having been cited personally in respect of ex-parte orders, had to be personally served or shown to have knowledge of the orders; the affidavit of service showed service only on the Respondents' offices. Both applications were dismissed. As the matter was public interest litigation, no orders as to costs were made. The ruling was delivered electronically on 28th January 2021 in line with COVID-19 guidelines.

Key legal issues

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01

Whether temporary injunction was merited despite completed eviction

Holding

The application was overtaken by events and dismissed; the ex-parte orders were discharged.

Reasoning

The Petitioner's own affidavit confirmed the eviction and destruction of crops occurred in June 2020, four months before filing. A temporary injunction preserves the status quo against threatened acts, not completed ones. Issuing orders restraining what has already occurred would not be a judicious exercise of discretion, and considering the Giella principles would be academic.

p. 5
02

Whether contempt was established against the eight named officials

Holding

No contempt found; the application failed on two grounds - the orders were overtaken by events, and there was no proper service or knowledge of the ex-parte orders.

Reasoning

The affidavit of service showed service on offices of the 1st, 2nd and 3rd Respondents, not on the named individuals. Since the orders were ex-parte, the named contemnors could not have known of them, and personal service was imperative. Applying Woburn Estate and Halsbury's Laws, the court held personal service essential.

p. 6

Legal principles established

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  • A temporary injunction cannot be issued to restrain an event that has already occurred; the purpose of a temporary injunction is to prevent that which has not already happened.
  • The standard of proof in contempt proceedings is higher than proof on the balance of probabilities but not exactly beyond reasonable doubt.
  • Knowledge of a court order suffices in place of personal service for contempt purposes, but knowledge must actually be shown; where the orders are ex-parte, personal service on named alleged contemnors is imperative.

Court orders

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  1. 1.Dismissal of the Petitioner's Notice of Motion dated 7th October 2020
  2. 2.Discharge of the ex-parte injunction orders issued on 7th October 2020
  3. 3.Dismissal of the Petitioner's Notice of Motion dated 26th October 2020 (contempt application)
  4. 4.No orders as to costs, the matter being public interest litigation

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 43(1)(b)
  • Constitution of KenyaArticles 42 and 69
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1, 1A, 1B, 3A and 63(c)
  • Civil Procedure RulesOrder 40 Rule 1(a) and (b); Order 40 Rule 3(1)
  • Protection of Fundamental Rights and Freedoms of the Individual (High Court Practice and Procedure Rules 2006)Rules 11, 12, 20, 21
  • Judicature ActSection 5
  • Forest Act2005

Cases cited (5)

  • ESSO KENYA LTD v. MARK MAKWATTA OKIYA
    C.A Civil Appeal No 69 of 1991 [1992 eKLR]
  • GIELLA v. CASSMAN BROWN & COMPANY LTD
    1973 E.A 358
  • MUTIKIKA v. BAHARINI FARM LTD
    1985 KLR 229
  • SHIMMERS PLAZA LTD v. NATIONAL BANK OF KENYA
    2015 eKLR
  • WOBURN ESTATE LTD v. MARGARET BASHFORTH
    C.A Civil Appeal No 18 of 2015 [2016 eKLR]
Jurisdiction invoked
Article 50 of the Constitution; Rules 11, 12, 20 and 21 of the Protection of Fundamental Rights and Freedoms of the Individual (High Court Practice and Procedure Rules 2006); Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Richard K. Sibilibili v Kenya Forest Service & 9 others [2021] KEELC 4578 (KLR)", Case Analysis (2021). Not stated in judgment (Constitutional Petition, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4578/eng@2021-01-28

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