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ELCStruck OutChamber Summons dated 18/11/2021 (ELC, Nairobi) - Grant No. L.R. 3628 matter· [2022] KEELC 1077 (KLR)

Republic v Gershom Otachi (Chairman of the National Land Commission of the Republic of Kenya or any other Person holding that position) Ex parte Barack Wellingtone Odhiambo [2022] KEELC 1077 (KLR)

Environment and Land Court
3 March 2022
AKA. Y. Koross
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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You don't need the court's permission to sue someone for ignoring a court order in Kenya — just apply directly for committal.

What this practically means

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Executive summary

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The applicant filed a chamber summons dated 18/11/2021 under Section 5 of the Judicature Act and Rule 81.4 of the English Civil Procedure Rules (Amendment No.2) 2012 seeking leave to apply for an order committing the Chairman of the National Land Commission to civil jail for up to six months for disobeying an order of mandamus issued on 9/05/2020 compelling the Commission to facilitate renewal of the lease over Grant No. L.R. 3628 (LR 12045/95). He also sought costs. The application was supported by an affidavit sworn by his counsel, Mr Livingstone Maina Ombete, and reliance was placed on Republic v Joseph Wairagu Irungu Ex parte Vincent Alushula on contempt procedure. The respondent filed neither a response nor submissions. The court held that Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act confer jurisdiction over contempt, and that the governing framework is Section 5 of the Judicature Act, the Contempt of Court Act having been repealed. Following Christine Wangari Gachege and Kenya Country Bus Owners' Association, the court noted that under Part 81 of the English Civil Procedure Rules a committal application is made directly in the proceedings in which the order was made, and that per the Court of Appeal the requirement of leave has been dispensed with where contempt arises from breach of a judgment, order or undertaking. The application for leave was therefore incompetent and was struck out, with no orders as to costs. The court also observed typographical errors in the order of 20/12/2021, rectifiable under Section 99 of the Civil Procedure Act.

Key legal issues

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01

Whether leave is required to institute contempt of court proceedings for disobedience of a court order

Holding

No; leave is not required where contempt arises from breach of a judgment, order or undertaking, so an application seeking leave is incompetent

Reasoning

The court traced the contempt regime: the Contempt of Court Act was repealed, reverting to Section 5 of the Judicature Act, which imports the procedure of the High Court of Justice in England. Under Part 81 of the English Civil Procedure Rules 2012, a committal application is made directly in the proceedings in which the order was made. In Christine Wangari Gachege, the Court of Appeal held the leave requirement was dispensed with for breach of a judgment, order or undertaking. The applicant's chamber summons seeking leave was therefore incompetent.

p. 2

Legal principles established

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  • The statutory basis for contempt proceedings in the High Court, Court of Appeal and the ELC is Section 5 of the Judicature Act, with procedure governed by Part 81 of the England Civil Procedure (Amendment No.2) Rules 2012
  • Leave of the court is not required before instituting contempt proceedings founded on breach of a judgment, order or undertaking

Court orders

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  1. 1.The application dated 18/11/2021 is hereby struck out with no orders as to costs.

Authorities

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Legislation

  • Judicature ActSection 5
  • Environment and Land Court ActSections 13 and 14
  • Constitution of KenyaArticle 162(2)
  • Civil Procedure Rules (Amendment No.2) 2012 of EnglandRule 81.4 / Part 81
  • Civil Procedure ActSection 99
  • Contempt of Court Actrepealed

Cases cited (4)

  • Republic v Joseph Wairagu Irungu, Principal Secretary Ministry of Water and Sanitation & another Ex parte Vincent Alushula
    [2021] eKLR
  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
  • Kenya Country Bus Owners' Association & 8 others v Cabinet Secretary for Transport & Infrastructure & 5 others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; Section 13 of the Environment and Land Court Act; Section 5 of the Judicature 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, "Republic v Gershom Otachi (Chairman of the National Land Commission of the Republic of Kenya or any other Person holding that position) Ex parte Barack Wellingtone Odhiambo [2022] KEELC 1077 (KLR)", Case Analysis (2022). Chamber Summons dated 18/11/2021 (ELC, Nairobi) - Grant No. L.R. 3628 matter. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1077/eng@2022-03-03

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