Mugun (Suing as Administrator of Estate of Kipsum Arap Mugun) v Busienei & 3 others (Environment & Land Case 395 of 2013) [2022] KEELC 2976 (KLR)
The bottom line
#A Kenyan court refused to jail a man for contempt because the land injunction had expired automatically after one year and was never renewed.
What this practically means
#Executive summary
#Key legal issues
#Whether the restraining order of 15th October 2013 was still in force when contempt was alleged in January 2019
No - the interlocutory injunction lapsed automatically after twelve months by operation of Order 40 Rule 6, and was never extended by the court
Order 40 Rule 6 is couched in mandatory terms ('shall'), so an interlocutory injunction lapses twelve months after grant if the suit is undetermined, unless the court orders otherwise for sufficient reason. The plaintiff offered no explanation for failing to extend the order or to prosecute the suit, and relied on superior court decisions confirming the mandatory nature of the rule.
Whether service of, or knowledge of, the order on the 1st defendant was proved
No - the affidavit of service relied on predated the extraction of the order and could not prove service of it
The plaintiff had to prove the 1st defendant's awareness of the order for contempt to lie. The affidavit of service sworn on 25th September 2013 dealt only with service on 8th and 24th August 2013, before the order of 27th September 2013 was extracted on 15th October 2013. Reliance on it was found mischievous and misleading, and counsel's conduct was deprecated as unethical.
Costs of the application
The 1st defendant, who participated in the hearing, is entitled to costs under section 27 of the Civil Procedure Act
The application being without merit, and the 1st defendant having participated in its hearing, the normal rule that costs follow the event applied, subject to section 27 of the Civil Procedure Act (Cap 21).
Legal principles established
#- An interlocutory injunction automatically lapses twelve months after grant unless the suit is determined or the court extends it for sufficient reason, under Order 40 Rule 6 of the Civil Procedure Rules
- A party sought to be committed for contempt must be shown to have been aware of, or served with, the order alleged to have been disobeyed
Court orders
#- 1.The plaintiff's notice of motion dated 25th January 2019 is dismissed with costs to the 1st defendant
- Jurisdiction invoked
- Contempt jurisdiction of the Environment and Land Court in a pending suit; Civil Procedure Act (Cap 21) and Civil Procedure Rules, Order 40 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugun (Suing as Administrator of Estate of Kipsum Arap Mugun) v Busienei & 3 others (Environment & Land Case 395 of 2013) [2022] KEELC 2976 (KLR)", Case Analysis (2022). Notice of Motion dated 25th January 2019 (ELC suit re Plot No. 139, Kesses Kelji Farm LR No. 9621). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2976/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.