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ELCDismissedNotice of motion dated November 27, 2019 (suit re: arbitrators' award of May 13, 1986)· [2022] KEELC 3590 (KLR)

Ndeti & another (Legal representatives of Idah Ndinda Ndeti (Deceased)) v Ndeti & another (Legal representatives of Dr Kivuto Ndeti (Deceased)) (Environment and Land Case Civil Suit 55 of 2015) [2022] KEELC 3590 (KLR)

Environment and Land Court
21 July 2022
3,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court refused to jail the defendants for contempt because contempt in Kenya requires near-certain proof of deliberate disobedience of a clear court order.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Okong'o J) determines a notice of motion dated November 27, 2019 by the plaintiffs seeking the committal of the defendants, Cecilia Situmai Ndeti and Michael Kyende Ndeti, to civil jail for six months for disobedience of a ruling of July 26, 2017 and the decree of September 20, 2017 extracted from an arbitrators' award of May 13, 1986. The decree had restrained the defendants from selling or parting with LR No 7149/9, IR 1872/2 or evicting the plaintiffs until PN Ndeti and Brothers Limited was dissolved and its assets shared. The plaintiffs alleged the defendants subdivided and sold the suit property, allocating them only 3 acres of over 100 acres. The defendants responded that they were judgment debtors who had complied with the decree, carved out a portion for the plaintiffs, and dealt with the property pursuant to a confirmed grant in Nairobi High Court Succession Cause No 1587 of 2012 in which the suit property vested in Kivusit Holdings Limited, and that the plaintiffs' challenges to that grant had failed in the High Court and Court of Appeal. Applying the principles in Hardkinson v Hardkinson, Mutitika v Baharini Farm, Michael Sistu Mwaura Kamau and Shimmers Plaza, the court found contempt not proved: the decree gave no formula for division, PN Ndeti and Brothers had been dissolved in 1997 so the restraint on sale lapsed, and the defendants acted pursuant to unvaried High Court orders which this court could not vary. The application was also an abuse of process for non-disclosure of the succession proceedings. The notice of motion was dismissed with costs to the defendants.

Key legal issues

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01

Whether the defendants were in contempt of the decree restraining them from selling the suit property

Holding

No contempt proved; subdivision was carried out pursuant to a confirmed grant in Succession Cause and the decree imposed no formula for division

Reasoning

The decree restrained sale until PN Ndeti and Brothers Limited was dissolved; that company was dissolved in 1997, so the restraint lapsed. The parties' dispute concerned division of the property, which necessarily involved subdivision, and the decree gave no formula. The plaintiffs failed to fault the defendants' mode of division or propose an alternative. The defendants also acted pursuant to unimpeached High Court orders in the succession cause.

02

Whether personal service of the decree was required before committal

Holding

Personal service was not required where the party had knowledge of the order

Reasoning

Relying on Shimmers Plaza and Mutitika, the court noted that Kenyan jurisprudence has moved from strict personal service; knowledge of the order suffices. However, since substantive contempt was not proved, the service question did not determine the application.

03

Whether the plaintiffs' failure to disclose the succession proceedings rendered the application an abuse of process

Holding

The application was an abuse of process because the plaintiffs failed to disclose that they had litigated the grant in the High Court and Court of Appeal and lost

Reasoning

The defendants dealt with the suit property pursuant to orders of the High Court allowing confirmation of the grant, which were never varied or set aside. This court had no jurisdiction to vary the High Court orders, and having lost in the High Court and Court of Appeal, the plaintiffs could not open another front before this court.

Legal principles established

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  • Knowledge of a court order suffices for contempt proceedings and dispenses with the requirement of personal service
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • To sustain committal for contempt, the order alleged to have been disobeyed must be clear and precise, and disobedience must be willful and deliberate

Court orders

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  1. 1.The notice of motion dated November 27, 2019 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure Rules (repealed)Order XLV rule 17(1)
  • Contempt of Court ActSection 4

Cases cited (9)

  • Hardkinson v Hardkinson
    [1952] ALL ER 567
  • Mutitika v Baharini Farm Ltd.
    [1985] KLR 227
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    (2018) eKLR
  • Republic v Ahmad Abolfathi Mohammed & Another
  • Jihan Freighters Ltd v Hardware & General Stores Ltd
  • AB & Another v R B
    [2016] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Justus Kariuki Mate & Another v Hon Martin Wambora
  • Basil Criticos v Attorney General and 8 Others
    [2012] eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over suits referred to arbitration and enforcement of resulting decrees

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, "Ndeti & another (Legal representatives of Idah Ndinda Ndeti (Deceased)) v Ndeti & another (Legal representatives of Dr Kivuto Ndeti (Deceased)) (Environment and Land Case Civil Suit 55 of 2015) [2022] KEELC 3590 (KLR)", Case Analysis (2022). Notice of motion dated November 27, 2019 (suit re: arbitrators' award of May 13, 1986). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3590/eng@2022-07-21

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