Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2022] KEELC 1475 (KLR)

John S Ole Maitai v Koitaat Ole Saitieu [2022] KEELC 1475 (KLR)

Environment and Land Court
17 February 2022
CMC.G Mbogo
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to jail a man for defying an injunction because the order was never served in time and had lapsed automatically.

What this practically means

#

Executive summary

#
The plaintiff, John S. Ole Maitai, moved the court by notice of motion dated 23rd July 2021 under Order 40 Rule 3(1) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking the committal of the defendant, Koitaat Ole Saitieu, to civil jail for six months and compensation for damages arising from alleged contempt of interim orders issued on 6th July 2021 over plot Narok/Cis/Mara-Olorropil/899. The plaintiff alleged that the defendant sprayed standing pasture and crops with herbicides, ploughed the land and planted irish potatoes, threatened him with bodily harm, purported to transfer a share of the land and to lease it out, destroying the evidence the plaintiff intended to rely on in the underlying Originating Summons. The defendant opposed, denying service of the orders, asserting he was in possession as legitimate owner, and contending that the orders had lapsed and that contempt must be proved beyond peradventure. The court framed a single issue: whether the orders sought could be granted. Applying Order 40 rule 4(3), the court found that the ex-parte injunction was issued on 6th July 2021 but the process server received it only on 12th July 2021, so the order automatically lapsed after three days, on 9th July 2021. A lapsed order cannot found contempt. The court also found the applicant's evidence of interference unsubstantiated - no police report of threats, no evidence of destroyed crops, unverified photographs. Relying on the Supreme Court's guidance in Republic v Ahmad Abolfathi Mohammed that committal must be a last resort and breach must be deliberate and willful, the court dismissed the application with no orders as to costs on 17th February 2022.

Key legal issues

#
01

Whether the respondent committed contempt of the orders issued on 6th July 2021

Holding

No contempt was established because the ex-parte injunction lapsed automatically on 9th July 2021 due to failure to serve within three days as required by Order 40 rule 4(3), and the applicant's evidence of disobedience was unsubstantiated.

Reasoning

The process server's affidavit showed he received the orders only on 12th July 2021, beyond the three-day service window prescribed by Order 40 rule 4(3), so the injunction automatically lapsed on 9th July 2021. A lapsed order cannot ground contempt. Additionally, the applicant failed to substantiate alleged threats (no police report), destruction of crops, or the provenance of photographs, and the standard of proof for contempt was not met.

p. 3

Legal principles established

#
  • An ex-parte injunction not served within three days automatically lapses and cannot found contempt proceedings
  • The power to commit a person to jail for contempt must be exercised with utmost care and only as a last resort, and breach must be deliberate and willful

Court orders

#
  1. 1.The notice of motion application dated 23rd July, 2021 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Civil Procedure RulesOrder 40 rule 4(3)
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A

Cases cited (6)

  • Nabro Properties versus Sky Structures Limited & 2 Others
    [2002] eKLR
  • Teachers Service Commission versus Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Hadkinson versus Hadkinson
    (1952) ALL ER 567
  • Katsuri Limited versus Kapurchand Depar Shah
    [2016] eKLR
  • Esther Kakonyo Wanjohi versus Julian Wambui Gakuru
    [2018] eKLR
  • Republic v Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
Jurisdiction invoked
Order 40 Rule 3(1) of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John S Ole Maitai v Koitaat Ole Saitieu [2022] KEELC 1475 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1475/eng@2022-02-17

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