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ELCPartially Allowed· [2022] KEELC 1488 (KLR)

James Kimunyu Gathare v Videlia Muthoni Ndungu & another [2022] KEELC 1488 (KLR)

Environment and Land Court
9 February 2022
LMLucy N. Mbugua
1,171 words in judgment
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The bottom line

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A Kenyan landowner's bid to jail opponents for breaking a court order failed, but the court froze the land and added new parties to the case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) on the Plaintiff's notice of application dated 3.3.2021. The Applicant sought joinder of interested parties, an order that the Defendants and Interested Parties personally attend court to show cause why they should not be punished for contempt, a six-month jail term for contempt, and, in the alternative, an inhibition over parcels LR.28878 and 28879. The Applicant alleged that despite status quo orders issued at the inception of the suit, the Defendant processed title over the land during the pendency of the suit. No replying affidavit was traced on the court's digital platform. On contempt, the court applied Section 5 of the Judicature Act and the Court of Appeal's decision in Micheal Sistu Mwaura Kamau v DPP & 4 others, holding that committal requires wilful, deliberate disobedience of a clear order proved to a heightened standard. The court found the Applicant had not identified the specific order violated, and extracted its ruling of 11.3.2013 which had varied the 5.7.2012 injunctive order, permitting the 1st Defendant to remain in occupation. The contempt prayer therefore failed. On joinder, the court applied Order 1 rule 10(2) of the Civil Procedure Rules and Joseph Njau Kingori v Robert Maina Chege, joining the registered proprietors of the suit parcels as Interested Parties, while questioning why only one of three was sought. It also issued an inhibition to preserve the suit land. The application was partially allowed; costs abide the outcome of the suit.

Key legal issues

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01

Whether contempt of court was established

Holding

Contempt not established; the applicant failed to identify the specific order violated, and the ruling of 11.3.2013 varied the earlier injunctive order

Reasoning

The court extracted its earlier ruling of 11.3.2013, which varied the 5.7.2012 injunction by permitting the 1st Defendant to remain in occupation and tasking the 2nd Defendant with establishing ownership. Without a clear, subsisting order and proof of wilful disobedience to the heightened standard, committal could not be sustained.

p. 2
02

Whether the proposed parties should be joined as Interested Parties

Holding

Joinder allowed under Order 1 rule 10(2) CPR, following Joseph Njau Kingori v Robert Maina Chege & 3 Others

Reasoning

The Applicant produced a title deed showing parcels 28878 and 28879 registered in the names of Hannah Wambui, Joseph Kuria and Peter Marira. The court noted confusion over why only one of the three was sought to be joined, but found the proposed parties properly characterised as Interested Parties and ordered their joinder.

p. 2
03

Whether an inhibition should issue over the suit parcels

Holding

An order of inhibition issued to preserve parcels LR.28878 and 28879 pending trial

Reasoning

The court found preservation of the suit land necessary given the ongoing dispute over ownership and the processing of title during the pendency of the suit. The inhibition preserves the subject matter until final determination.

p. 2

Legal principles established

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  • To commit a person for contempt, the court must be satisfied of wilful and deliberate disobedience of a clear and precise order, proved to a standard higher than balance of probabilities but below beyond reasonable doubt
  • A party with an interest in the subject of litigation may be joined as an Interested Party under Order 1 rule 10(2) of the Civil Procedure Rules

Court orders

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  1. 1.The proposed Interested Parties are joined in these proceedings
  2. 2.The Plaintiff is given 14 days to amend his pleadings to reflect his claim against the new parties, failing which the orders lapse
  3. 3.All other parties are given 14 days to amend or file their pleadings accordingly
  4. 4.An order of inhibition is issued against parcels LR.28878 and 28879
  5. 5.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (2)

  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Joseph Njau Kingori vs. Robert Maina Chege & 3 Others
    (2000) eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (contempt); Order 1 rule 10(2) of the Civil Procedure Rules (joinder)

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, "James Kimunyu Gathare v Videlia Muthoni Ndungu & another [2022] KEELC 1488 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1488/eng@2022-02-09

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