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ELCPartially AllowedELC Case No. 133 of 2016· [2022] KEELC 2353 (KLR)

Manoti & another v Manoti (Environment & Land Case 133 of 2016) [2022] KEELC 2353 (KLR)

Environment and Land Court
4 July 2022
JOJ.M ONYANGO
2,388 words in judgment
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The bottom line

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The Environment and Land Court in Kisii found a land owner guilty of disobeying an injunction, and he must appear for sentencing.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by Notice of Motion dated November 8, 2021 seeking that the defendant/respondent be cited and punished for contempt of a temporary injunction issued on September 30, 2021, restraining him from entering, trespassing on or dealing with land parcels Wanjare/Bogiakumu/7891 and 7892 pending hearing of the main suit. They sought a committal warrant for a jail term of up to six months or, in the alternative, sequestration of the respondent's properties. The applicants deponed that the orders were extracted, served personally and on his advocates on October 29, 2021 with a penal notice, yet the respondent cut trees and continued farming on the land, and further mispresented the position to police, leading to the arrest of the applicants' agent. The respondent filed a replying affidavit generally denying the allegations as falsehoods and asking for a surveyor's report, but did not deny service or give his own account, and did not file submissions. The court, adopting the four-element test for civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, found the order clear and unambiguous, that the respondent had knowledge and proper notice through an affidavit of service, and that the applicants had proved deliberate breach to the standard higher than balance of probabilities but below beyond reasonable doubt, as articulated in Wildlife Lodges Ltd v County Council of Narok. The court found the respondent guilty of contempt and directed him to appear personally for sentencing on September 22, 2022, failing which the court would sentence in his absence.

Key legal issues

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01

Whether the terms of the injunction order were clear and unambiguous and binding on the respondent

Holding

The order was unambiguous and the respondent must be taken to have understood it

Reasoning

The court perused the ruling of September 30, 2021 restraining the respondent from entering, encroaching, cultivating or interfering with the suit parcels. Learned counsel submitted there was no notable ambiguity, and the court accepted that the extracted and served order was clear, so the respondent understood its meaning.

p. 4
02

Whether the respondent had knowledge of or proper notice of the terms of the order

Holding

The respondent had knowledge and proper notice, proved by affidavit of service

Reasoning

An affidavit of service dated November 1, 2021 showed personal service on October 29, 2021. The respondent did not deny service nor claim he did not understand the order; he merely alleged the applicant's averments were falsehoods. The court therefore found proper notice established.

p. 4
03

Whether the respondent acted in deliberate breach of the order

Holding

The respondent deliberately disobeyed the order and is guilty of contempt

Reasoning

The applicants deponed, with photographs and a police OB annexed, that the respondent cut trees and Napier grass and continued farming on the suit properties after being served. The respondent merely denied the claims and requested a survey without giving his own account. The court found the four elements proved and held him guilty of contempt.

p. 5

Legal principles established

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  • Four elements must be proved for civil contempt: the terms of the order were clear and unambiguous and binding; the defendant had knowledge or proper notice; the defendant acted in breach; and the conduct was deliberate
  • The standard of proof in contempt is higher than a balance of probabilities but lower than beyond reasonable doubt
  • A person against whom a court order is made is under a plain obligation to obey it until discharged, whether or not he considers it valid

Court orders

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  1. 1.The respondent is found guilty of contempt of the court order of September 30, 2021
  2. 2.The respondent is directed to appear personally before the court on September 22, 2022 at 9.00 am for sentencing and further orders
  3. 3.In default of his appearance, the court shall proceed to mete out an appropriate sentence in his absence

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29

Cases cited (2)

  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
  • Wildlife Lodges Ltd v County Council of Narok and another
    [2005] 2 EA 344 (HCK)
Jurisdiction invoked
Section 5(1) of the Judicature Act; Section 29 of the Environment and Land Court Act

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, "Manoti & another v Manoti (Environment & Land Case 133 of 2016) [2022] KEELC 2353 (KLR)", Case Analysis (2022). ELC Case No. 133 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2353/eng@2022-07-04

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