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ELCAllowedELC Appeal No. E002 of 2021· [2022] KEELC 1231 (KLR)

Adhar Khalil & Muhayid Kali v Fatuma Hussein Hassan [2022] KEELC 1231 (KLR)

Environment and Land Court
25 February 2022
ECE.C. Cherono
849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a civil jail committal because the defendants were never given a proper chance to be heard.

What this practically means

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Executive summary

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This was a first appeal from a ruling of Hon. T. Ole Tanchu SRM dated 20th January 2021 in Garissa ELC Case No. 13 of 2020, committing the appellants to one month's imprisonment for disobedience of interim injunctive orders issued on 15th October 2020 restraining interference with the respondent's quiet possession of property GSA/2425. The respondent had applied on 25th November 2020 for the appellants' committal for up to six months. The appellants appealed seeking release from civil jail and vacation of the committal orders, and were released after eight days in custody following interim stay orders. At the hearing of the appeal, the appellants argued they were condemned unheard; the respondent argued the appeal was spent owing to their earlier release. The court, applying its first appellate duty of fresh scrutiny per Selle v Associated Motor Boat Co., found that the appellants' advocates had ceased acting, they were unrepresented and present in court, but the trial court never gave them leave to give reasons against committal, so the committal proceedings proceeded unheard. The court held that committal to civil jail requires strict adherence to the Civil Procedure Act and Rules, including notice to show cause and interrogation, and that committal is a last resort. Finding merit in the appeal, the court set aside the trial court's orders of 20th January 2021 and ordered each party to bear their own costs.

Key legal issues

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01

Whether the committal orders were validly made

Holding

The committal was invalid because the appellants were given no opportunity to show cause why they should not be committed.

Reasoning

The appellants' advocates ceased acting and they were unrepresented at the first instance of the committal proceedings. Though present in court, the trial judge never gave them leave to give reasons against committal, so the proceedings were unheard. Strict procedural adherence to the Civil Procedure Act and Rules is required, with notice to show cause, interrogation, and committal only as a last resort.

p. 2

Legal principles established

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  • Before committal to civil jail there must be strict adherence to the procedures in the Civil Procedure Act and Rules, and the right to be heard via a show-cause notice is fundamental; committal is a last resort.

Court orders

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  1. 1.The Orders issued by the trial Court on 20/1/2021 committing the appellants to one month imprisonment are set aside
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Act
  • Civil Procedure Rules

Cases cited (2)

  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123
  • Jayne Wangui Gachoka v Kenya Commercial Bank Limited
    [2013] eKLR
On appeal from
Senior Resident Magistrate's Court, Garissa
Garissa ELC Case No. 13 of 2020
Jurisdiction invoked
First appellate jurisdiction over Garissa ELC Case No. 13 of 2020

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, "Adhar Khalil & Muhayid Kali v Fatuma Hussein Hassan [2022] KEELC 1231 (KLR)", Case Analysis (2022). ELC Appeal No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1231/eng@2022-02-25

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