Kaunda v Wambua
The bottom line
#The Machakos Environment and Land Court struck out a landowner's contempt application because she couldn't prove the court order was actually violated or served.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent and two purchasers should be cited for contempt of the orders of January 27, 2017
No - contempt was not proved; the respondent's admitted sale predated the suit and service on the purchasers was not demonstrated
The court applied the four elements of civil contempt from North Tetu Farmers Co Ltd v Joseph Nderitu Wanjohi: clear and unambiguous order, knowledge or notice, breach, and deliberateness, all to a standard higher than civil cases. The applicant did not state when the property was sold or show how she served the two purchasers, who are not parties to the suit. The respondent admitted selling one acre before the suit, which the applicant did not controvert.
Whether the court is functus officio in respect of the prayers for injunction and declaration that the sale is null and void
Yes - the matter had already been heard and determined, so the court cannot revisit it
Relying on the Supreme Court's exposition in Raila Odinga & 2 Others v IEBC & 3 others and Arthur Mathitu Nderitu & Another v Settlement Fund Trustees, the court held that once proceedings are finally concluded and the judgment perfected, the court cannot review or alter its decision. Since the suit was already determined on January 27, 2017, the court lacked competence to grant fresh injunctive and declaratory relief.
The proper course for the applicant given the subsisting judgment and pending appeal
The applicant should first execute the decree, and only if execution fails seek committal to civil jail
The court noted there was no stay of execution pending the appeal to the Court of Appeal (Civil Appeal No 438 of 2018), and proceeded on the assumption that the ex parte judgment orders remained in force. It therefore directed the applicant to the execution route rather than contempt, before striking out the application as incompetent.
Legal principles established
#- Contempt proceedings are criminal in nature and the applicant bears the burden of proving the breach occurred after the order and that the order, with a penal notice, was served on the alleged contemnors
- A court becomes functus officio once its judgment or order has been perfected and cannot revisit the merits save as provided by law
Court orders
#- 1.The notice of motion application dated February 23, 2022 is struck out as incompetent
- 2.Costs will be in the cause
- Jurisdiction invoked
- Order 40 rule 2(3) of the Civil Procedure Rules; section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaunda v Wambua", Case Analysis (2022). Environment & Land Case 196 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13640/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.