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ELCDismissedNot stated in the judgment· [2023] KEELC 191 (KLR)

Kiptanui v Kotut (Environment & Land Case 28 of 2019) [2023] KEELC 191 (KLR)

Environment and Land Court
26 January 2023
EOE O Obaga
712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail a landowner for contempt because the applicant proved neither that she was served with the order nor that it even existed when the breach allegedly happened.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret by E O Obaga, Judge, determined a notice of motion dated April 7, 2022 in which the Plaintiff/Applicant sought the committal of the Defendant/Respondent Jane Jepkemboi Kotut, her servants or agents, and her son Kelvin Kibiwott Kotut to prison for up to two years for disobeying a court order of June 17, 2020, which had restrained interference with 3 acres comprised in LR No Uasin Gishu/Kipkabus/912 pursuant to an order of May 14, 2020. The Applicant alleged that on February 18, 2022 the Respondent and her son forcefully ploughed the land and threatened the Applicant despite awareness of the order. The Respondent opposed the application as incompetent and an abuse of process, contending the orders did not apply to four acres that had always belonged to her, and that the cited provisions dealt with change of advocates and security for costs. Framing the sole issue as whether contempt was proved, the court set out three elements: a valid order, service or knowledge of it, and deliberate disobedience. It found no affidavit of service, no evidence the contemnor was aware of the order, and noted the Applicant's own dates placed the alleged ploughing before the order he relied on. Holding the application an abuse of process and a waste of judicial time, the court dismissed it with costs to the Respondent. It is so ordered.

Key legal issues

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Proof of contempt of court

Holding

Contempt was not proved: there was no affidavit of service or evidence the Respondent was aware of the order, and the ploughing allegedly occurred before the order relied on was issued

Reasoning

The court set out three elements of contempt: a valid order, service or knowledge of it, and deliberate disobedience. On the record there was no affidavit of service, no indication counsel were present when the order issued, and no evidence of electronic transmission of the ruling or extracted order. Further, the alleged ploughing of February 18, 2022 preceded the order allegedly violated. The application was therefore an abuse of process and was dismissed with costs.

p. 2

Legal principles established

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  • Elements of contempt: a valid order, service or awareness of it, and deliberate disobedience
  • A party cannot be held in breach of an order not in existence at the time of the alleged contempt

Court orders

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  1. 1.The notice of motion dated April 7, 2022 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Inherent contempt jurisdiction of the court over breach of its own orders of May 14, 2020 and June 17, 2020

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, "Kiptanui v Kotut (Environment & Land Case 28 of 2019) [2023] KEELC 191 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/191/eng@2023-01-26

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