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ELCDismissedEnvironment & Land Case 230 of 2014· [2022] KEELC 14851 (KLR)

Musembi v Njoroge & 2 others

Environment and Land Court
17 November 2022
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court refused to jail a Lands official for contempt because a caveat on the title made the court order ambiguous.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Ochieng, J) determined the plaintiff's notice of motion dated August 5, 2021 seeking to have the Chief Land Registration Officer cited for contempt of the judgment of December 14, 2018, which ordered registration of LR No 337/427 in the plaintiff's name, and committal to civil jail for 60 days. The plaintiff deposed that the extracted orders were served on the contemnor on October 5, 2020, and that queries raised were answered, yet registration was not effected. The contemnor, through grounds of opposition, argued the application was premature and defective because he was not a party to the suit, the order's terms were unclear, and a caveat placed on the suit property by the Mavoko Principal Magistrate's Court in PMCC No 339 of 2013 on June 5, 2013, prohibiting dealings with the land, had never been set aside. The plaintiff admitted obtaining the injunction in the Mavoko suit, which he later withdrew, contending the injunction lapsed after 12 months. The court framed a single issue: whether the alleged contemnor should be cited for contempt and committed. Setting out the statutory basis (section 63(c) Civil Procedure Act, section 29 Environment and Land Court Act, section 4(1)(a) Contempt of Court Act) and the four elements of civil contempt from North Tetu Farmers, the court found that although the contemnor was served, the subsisting caveat meant the plaintiff ought first to have obtained an express order discharging it, creating ambiguity. Willful disobedience was not established; the application was dismissed with no order as to costs.

Key legal issues

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01

Whether the Chief Land Registration Officer was in contempt of the judgment of December 14, 2018

Holding

No contempt found; the contemnor was exonerated as willful disobedience was not established

Reasoning

The court accepted the order was served on October 5, 2020, but found that a caveat registered in Mavoko PMCC No 339 of 2013 remained on the title. The plaintiff should first have obtained an express order discharging the caveat before seeking registration of the decree, creating ambiguity in the order. Absent willfulness, contempt was not made out.

02

Whether contempt proceedings can lie against a person not a party to the suit

Holding

The court found the contemnor was not a party but had been served with the order, so service rather than party status was decisive on the facts

Reasoning

The court noted the alleged contemnor was not a party to the suit but found he had been served with the order. It did not decide the point as a bar; instead it resolved the application on the absence of willful disobedience caused by the subsisting caveat.

p. 4

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous order, knowledge/notice, breach, and deliberate conduct, to a standard higher than the civil standard
  • No order requiring a person to do an act may be enforced by committal for contempt unless a copy of the order has been served personally with an indorsed warning notice

Court orders

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  1. 1.The notice of motion application dated August 5, 2021 is disallowed
  2. 2.The alleged contemnor is exonerated
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Actsection 63(c)
  • Environment and Land Court Actsection 29
  • Contempt of Court Actsection 4(1)(a)

Cases cited (11)

  • Shaila Casuatt Issemberg v Anthony Macharia Kinyanjui
    Kajiado HCC No 19 of 2020

    Cited by plaintiff; quoted Cromwell J in Carey v Lanken on obedience to court orders

  • Hadkinson v Hadkinson
    (1952) 2 All ER 567

    Cited by contemnor on contempt

  • Abraham Mwangi Wamwigi v Simon Mbiriri Wanjiku and another
    [2012] eKLR

    Cited by contemnor on contempt

  • Rose Njeri Munoru & 13 others v Hannah Mwihaki Muturi & 4 others
    [2016] eKLR

    Cited by contemnor on contempt

  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] eKLR

    Elements of civil contempt to be proved

  • James Gachiri Mwangi v John Waweru Muriuki & 3 Others
    [2020] eKLR

    Cited by contemnor on contempt

  • Simmers Plaza Limited v National Bank of Kenya Limited
    (2015) eKLR

    Cited by contemnor on contempt

  • Nyamongo v KPTC
    CA Appl No Nai 264/1993

    Cited by contemnor on contempt

  • Kariuki & 2 others v Minister for Gender, Sports, Culture, Social Services & 2 Others
    [2004] eKLR

    Cited by contemnor on contempt

  • Henry Kigera Thuo & 2 others v Jackson Maina Mwangi & 3 others
    [2013] eKLR

    Cited by contemnor on contempt

  • Ochino & another v Okombo & 4 others
    (1989) eKLR

    Personal service of order with indorsement required before committal for contempt

Jurisdiction invoked
Section 63(c) of the Civil Procedure Act; section 29 of the Environment and Land Court Act; section 4(1)(a) of the Contempt of 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, "Musembi v Njoroge & 2 others", Case Analysis (2022). Environment & Land Case 230 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14851/eng@2022-11-17

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