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ELCDismissedApplication dated 24th June 2020 (suit over land parcel No. Eldoret Municipality Block 14/323)· [2022] KEELC 2073 (KLR)

Stephen Kimani Gitau v Joseph Momanyi Sure & another [2022] KEELC 2073 (KLR)

Environment and Land Court
21 January 2022
MOM.A. Odeny
1,518 words in judgment
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The bottom line

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A Kenyan court dismissed a contempt case because the court order had already expired — contempt proceedings must rest on a valid, subsisting order.

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 Malindi (M.A. Odeny, J) on a notice of motion dated 24th June 2020 in which the plaintiff sought committal of the 2nd defendant to civil jail for up to six months for disobeying orders issued on 19th March 2020, an order that monthly rental income from rental units on land parcel No. Eldoret Municipality Block 14/323 be deposited in court, and in the alternative an injunction restraining the defendant from occupying the rental premises. The plaintiff, relying on the four-element test in Kimanja Kamau v Francis Mwangi Mwaura, submitted that the status quo orders were served on the defendant, who nonetheless built rental units on the suit land in deliberate disobedience. The defendant countered that the works were mere renovations to stop rain leakages in compliance with earlier orders of 21st July 2017 and that the contempt threshold had not been met, citing Econet Wireless and related authorities. The court outlined the statutory framework for contempt under Order 40 Rule 3(1) of the Civil Procedure Rules and section 29 of the Environment and Land Court Act, and reiterated that an applicant must prove the terms of the order, the respondent's knowledge, and failure to comply. It found from the record that the 19th March 2020 orders were temporary injunctions granted for 30 days, lapsing on 18th April 2020 and never extended. The contempt application, filed on 25th June 2020, therefore had no valid subsisting order to rest on, and there was no evidence the complained-of construction occurred while the orders were in force. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant established contempt of the order of 19th March 2020

Holding

Application dismissed - no valid subsisting order existed at the time of filing, and no evidence the construction occurred during the currency of the orders

Reasoning

The court granted temporary injunctive orders for 30 days from 19th March 2020, which lapsed on 18th April 2020 without extension. The contempt application was filed on 25th June 2020, two months after expiry. Although service was not disputed, contempt could not be founded on a lapsed order, and there was no proof the complained-of building took place while the order was subsisting.

p. 3

Legal principles established

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  • To succeed in civil contempt proceedings an applicant must establish the terms of the order, the respondent's knowledge of those terms, and failure to comply; and the order relied on must be valid and subsisting at the material time.

Court orders

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  1. 1.Application dated 24th June 2020 dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1)
  • Environment and Land Court Act, 2011section 29
  • Civil Procedure RulesOrder 21 [1]
  • Landlord and Tenant Act (Shops, Hotels and Restaurants Act referenced in quoted authority)section 12(4)

Cases cited (11)

  • Kimanja Kamau (Suing as the personal representative of the estate of Gideon Gitundu Kimere-deceased v Francis Mwangi Mwaura & another
    [2018] eKLR
  • In the Matter of an Application by Saifudeen Abdullahi & 4 Others for Leave to Apply for Judicial Review and for Orders of Certiorari and Prohibition
    [2013] eKLR
  • Republic -vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel
    Mombasa Misc. Civil Application (JR) No. 26 of 2010
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Kenya Tea Growers Association v Francis Atwoli & 5 others
    [2012] eKLR
  • Clarke & others v Chadburn & others
    [1985] ALL ER (PC) 211
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR
  • Bob Collymore & another v Cyprian Nyakundi
    [2016] eKLR
  • Hon Martin Nyaga Wambora & 4 others v Speaker of the Senate & others
    Petition No. 3 of 2014 [2014] eKLR
  • Housing Finance Company of Kenya Ltd v Ngige Kitson Mondo
    [2006] eKLR
  • Saifudeen Abdullahi & 4 others
    Mombasa High Court Misc. Civil Cause No. 11 of 2012
Jurisdiction invoked
Environment and Land Court Act, 2011, section 29 (contempt jurisdiction); Order 40 Rule 3(1) Civil Procedure Rules

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, "Stephen Kimani Gitau v Joseph Momanyi Sure & another [2022] KEELC 2073 (KLR)", Case Analysis (2022). Application dated 24th June 2020 (suit over land parcel No. Eldoret Municipality Block 14/323). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2073/eng@2022-01-21

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