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ELCPartially AllowedEnvironment & Land Case 598 of 2012· [2022] KEELC 2186 (KLR)

Meli v Rop (Environment & Land Case 598 of 2012) [2022] KEELC 2186 (KLR)

Environment and Land Court
8 June 2022
2,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who tried to sell disputed land despite a court order was fined Kshs. 200,000 for contempt of court.

What this practically means

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Executive summary

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The Plaintiff, Kibet Meli, moved the Environment and Land Court at Eldoret by notice of motion dated 9th November 2021 seeking committal of the Defendant, Susan Rop, to civil jail for contempt of a conservatory/inhibition order issued on 2nd July 2018 restraining dealings over Nandi/Cheptil/480 pending the hearing of the main suit. The Plaintiff deposed that despite the order, which had been personally served on her on 23rd April 2019, the Defendant applied to the Kabiyet Land Control Board on 26th January 2021 for consent to transfer the suit land to a third party, Kipkirwa Lazarus Kirui. The Defendant denied knowledge of the order and contended it did not restrain her, and challenged the minutes and the process server's affidavit as uncertified. The court framed two issues: whether contempt was proved and the appropriate sanction, and costs. Applying the four elements of civil contempt - a clear and unambiguous order, notice, breach, and deliberateness - the court found the order clear, service proved through an unchallenged affidavit of service, and the Land Control Board minutes demonstrated breach; with three elements established, deliberateness followed. Relying on section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules, and on the Econet Wireless, Teachers Service Commission and Shimmers Plaza authorities on the duty to obey court orders, the court found contempt proved beyond peradventure. The application dated 9th November 2021 was allowed in terms of prayer 2: the Defendant was fined Kshs. 200,000/- payable within 30 days, in default a warrant of arrest to issue and committal to four months' imprisonment, and was ordered to pay the Plaintiff's costs of the application.

Key legal issues

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01

Whether the order of 2nd July 2018 was clear and unambiguous and served on the Defendant

Holding

The order was clear and unambiguous, preserving the suit property and inhibiting dealings, and was personally served on the Defendant on 23rd April 2019 as evidenced by an unchallenged affidavit of service.

Reasoning

The court perused the order and found it expressly preserved the property by stopping dealings, registration and transactions over Nandi/Cheptil/480 pending the main suit. The affidavit of service sworn by Vincent Otieno Ogutu showed service on the Defendant at Kapsabet court; that affidavit was never challenged by cross-examination, so the court had no difficulty concluding service occurred.

p. 2
02

Whether the Defendant breached the order deliberately

Holding

The Defendant deliberately breached the order by applying to the Land Control Board on 26th January 2021 for consent to transfer the suit land to a third party while the order was in force.

Reasoning

The minutes of the Land Control Board meeting of 26th January 2021 showed the Defendant sought consent to transfer the land to Kipkirwa Lazarus Kirui. The Plaintiff's evidence, including service of the order on the Board chairman, was unchallenged. With the first three contempt elements met, the court held the fourth element (deliberateness) was largely tautological given the clear, served order.

p. 3
03

What sanction should issue for the contempt

Holding

A fine of Kshs. 200,000/- payable within 30 days, in default a warrant of arrest and committal to four months' imprisonment, was imposed under section 63(c) of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules.

Reasoning

Having found contempt proved beyond peradventure, the court invoked its statutory power to commit a person guilty of disobedience of an injunction to prison and/or attach their property. It chose a fine with default committal of four months, and awarded costs to the Plaintiff under section 27 of the Civil Procedure Act.

p. 5

Legal principles established

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  • Four elements must be proved for civil contempt: a clear and unambiguous order binding on the respondent; knowledge or proper notice of its terms; breach of the order; and deliberate conduct.
  • There is an uncompromising obligation to obey court orders, extending even where the person affected believes the order to be irregular or void.
  • Where disobedience of a clear court order is proved, sanctions must follow as decreed by law.

Court orders

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  1. 1.A finding that the Defendant committed contempt of court by disobeying the order of 2nd July, 2018 by attempting to transfer the suit land to a third party
  2. 2.The Defendant to pay a fine of Kshs. 200,000/- within 30 days, in default a warrant of arrest to issue and she be committed to four (4) months imprisonment
  3. 3.The Defendant to pay the Plaintiff's costs of the application

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 63(c)
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 27
  • Civil Procedure RulesOrder 40 Rule 3(1)

Cases cited (8)

  • Kobilo Farm Limited & another
    [2020] eKLR
  • Abida Werimba Mwaniki & 2 others
    [2017] eKLR
  • Ashock Labshanker Doshi & another v County Government of Mombasa & 3 others
    [2021] eKLR
  • Johnson v Grant
    (1923) SC 789
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Gatharia K. Mutikika Versus Baharini Farm Limited
    [1985] KLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR 828
  • Shimmers Plaza Ltd v National Bank of Kenya Ltd
    CA no. 33 of 2012
Jurisdiction invoked
Section 63(c) of the Civil Procedure Act, Chapter 21, Laws of Kenya, and Order 40 Rule 3(1) of the Civil Procedure Rules (enforcement of injunctions through contempt proceedings)

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, "Meli v Rop (Environment & Land Case 598 of 2012) [2022] KEELC 2186 (KLR)", Case Analysis (2022). Environment & Land Case 598 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2186/eng@2022-06-08

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