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ELCPartially AllowedConstitutional Petition No E003 of 2021· [2022] KEELC 332 (KLR)

David Muindi M’liria v Land Adjudication Officer Amung’enti “A” Adjudication And Settlement & 2 others [2022] KEELC 332 (KLR)

Environment and Land Court
27 April 2022
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land court found two officials guilty of ignoring court orders, but the local administrator who didn't know about the case was let off.

What this practically means

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Executive summary

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This is a contempt-of-court application dated 16.9.2021 by the petitioner, David Muindi M'Liria, seeking the citation and punishment of the 1st, 2nd and 3rd respondents for willfully violating conservatory orders issued on 28.4.2021, which restrained interference with the suit parcels and directed the 1st respondent to supply the current adjudication maps. The petitioner alleged trespass on 13.4.2021 and 31.8.2021, destruction of developments, and refusal to supply maps despite service of the order on 30.4.2021. Following a formal hearing in which the three citees testified and were cross-examined, the court framed five issues covering the existence and knowledge of the order, the threshold for contempt, proof of contempt and the statutory-duty defence. The court held that the order of 28.4.2021 could not act retrospectively, so the acts of 14.4.2021 could not amount to contempt; the 1st citee (the Deputy County Commissioner) was unaware of the suit and was discharged. Service on 30.4.2021 was properly proved. The 2nd citee (the area chief) was found guilty for failing to supply the demarcation map without reasonable explanation and for knowingly participating in the events of 31.8.2021. The 3rd citee (the adjudication officer) was also found guilty. The court declined to punish immediately, instead directing the guilty parties to mitigate before sentencing under Section 29 of the Environment and Land Court Act. No costs order was made.

Key legal issues

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01

Whether a valid order existed on 14.4.2021 binding the citees

Holding

No order existed on 14.4.2021; the order was issued on 28.4.2021 and cannot act retrospectively.

Reasoning

The conservatory orders and the order for supply of maps were issued by ruling on 28.4.2021 after the respondents failed to respond to the application. Acts done before that date, including the 1st citee's visit to the locus in quo and his direction to open the access road on 14.4.2021, could not constitute contempt of an order not yet in existence, since orders cannot act retrospectively, and the petitioner failed to prove any earlier order.

p. 4
02

Whether the 2nd and 3rd citees were properly served and had knowledge of the order

Holding

Service on 30.4.2021 was proper and the 2nd and 3rd citees had knowledge of the ruling and order from that date.

Reasoning

The affidavit of service by Baylon Mutahi indicated the 1st and 2nd citees were served with the ruling on 30.4.2021. Although the served documents bore no signature at the back, the 2nd and 3rd citees acknowledged service in their replying affidavits and testimony. The court found proper service and knowledge of the contents of the ruling and order from 30.4.2021.

p. 4
03

Whether the 2nd citee was guilty of contempt for failing to supply the demarcation map

Holding

The 2nd citee was found guilty of contempt for willful failure to supply the demarcation map as ordered.

Reasoning

The order specifically directed the 1st respondent to produce and issue the petitioner with the current map for the suit parcels. The 2nd citee admitted the order required him to supply the maps, claimed procedural hurdles, and even after being summoned by the court had not attempted to purge the contempt or provide the map. Relying on Gladys Boss Shollei vs JSC, the court held the burden shifted to him to reasonably explain the non-compliance, and he could not shift blame to anyone else.

p. 4
04

Whether the 2nd and 3rd citees committed contempt in the events of 31.8.2021

Holding

The 2nd and 3rd citees were found guilty of contempt for the acts of 31.8.2021, having knowingly disobeyed the order.

Reasoning

The 1st and 2nd respondents, though aware of the pending suit and the order, failed to notify the 1st citee of the case and then denied the events of 31.8.2021 despite being placed at the scene. The court found they knew of the order and acted as if it did not exist, undermining confidence in courts as instruments for resolving land disputes, and rejected the defence that they were obeying lawful orders of the 1st citee.

05

Whether the citees acted in good faith in exercise of statutory duties

Holding

The good-faith/statutory duty defence failed for the 2nd and 3rd citees; the 1st citee was discharged.

Reasoning

The 1st citee, unaware of the suit, acted on a complaint from members of the public and the petitioner and was discharged from further participation. The 2nd and 3rd citees, being the area chief and the lands adjudication officer respectively and parties to the suit, could not claim to be executing statutory duties while disobeying a subsisting court order; the rule of law ought to have been their core mandate rather than advocating for the rule of the jungle.

p. 4

Legal principles established

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  • A court order cannot operate retrospectively; acts done before the issuance of an order cannot constitute contempt of that order.
  • Knowledge of a court order supersedes the requirement of personal service where a party clearly acts with knowledge of the order.
  • The burden on the applicant in contempt proceedings is to prove the contempt beyond any shadow of doubt, given the possible deprivation of liberty and property.

Court orders

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  1. 1.The 2nd and 3rd respondent citees are found guilty of contempt of court.
  2. 2.The 1st citee is discharged from further participation in this matter.
  3. 3.The 1st and 2nd respondents citees are ordered to mitigate before the court can punish them for contempt under Section 29 of the Environment and Land Court Act.

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29
  • High Court Organization and Administration ActSection 36(1)
  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Civil Procedure ActSection 63(e)
  • Constitution of KenyaArticles 10, 35, 47, 74, 159(1), 232
  • Access to Information ActNot specified
  • Fair Administrative Actions ActNot specified
  • National Government and Coordination Act (referred to as National Government and Coordination Act)Not specified
  • Chiefs Act / Local Government Acts (Caps 283 & 284 Laws of Kenya)Caps 283 & 284

Cases cited (15)

  • Miguna Miguna vs Fred Matiang'i Cabinet Secretary Ministry of Interior and Coordination of National Government and 8 others
    (2018) eKLR
  • AB & Another vs R.B
    (2016) eKLR
  • Eliud Muturi Mwangi P/A Muturi & Co Advocates vs LSG Lufthansa Services Europe/Africa GMBH & another
    (2015) eKLR
  • Shimmers Plaza Ltd vs NBK Ltd
    (2015) eKLR
  • Frankel Max Pollack Vinderine Inc. vs Menell Jack Hyman Rosenberg & Co. Inc & others
    (1996) ZASCA 21
  • Burchell vs Burchell
    (2005) Zaech 35
  • Samuel M.N Mweru & others vs National Land Commission & 2 others
    (2020) eKLR
  • Cecil Miller vs Jackson Njeru & another
    (2017) eKLR
  • North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi
    (2016) eKLR
  • Akber Abdullah Kassan Esmail vs Equip Agencies Ltd and 4 others
    (2014) eKLR
  • Econnect wireless (k) Ltd vs Minister for Information and Communication of Kenya & another
    (2005) eKLR
  • Basil Criticos vs A.G & 13 others
    (2013) eKLR
  • Oilfield Movers Ltd vs Zahara Oil & Gas Ltd
    (2020) eKLR
  • Republic vs County Government of Meru & another Exparte Theresa Stephen Kiunga as the legal representative of the estate of Stephen Michuki M'Kiunga deceased
    (2022) eKLR
  • Gladys Boss Shollei vs Judicial Service Commission
Jurisdiction invoked
Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act; Section 36(1) of the High Court Organization and Administration Act; Order 40 Rule 3(1) of the Civil Procedure Rules; Section 63(e) 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, "David Muindi M’liria v Land Adjudication Officer Amung’enti “A” Adjudication And Settlement & 2 others [2022] KEELC 332 (KLR)", Case Analysis (2022). Constitutional Petition No E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/332/eng@2022-04-27

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