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ELCAllowedNotice of Motion dated 5th June 2022 (Chuka JR ELC Case No E006 of 2022 - related proceedings)· [2023] KEELC 446 (KLR)

Republic v District Land Adjudication & Settlement Officer Igambang’ombe Sub-County & 3 others; Gitonga & another (Exparte); Mwangangi (Interested Party) (Environment and Land Civil Miscellaneous Application E007 of 2022) [2023] KEELC 446 (KLR)

Environment and Land Court
1 February 2023
3,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka (C. K. Yano J) determines a notice of motion dated 5 June 2022 in which exparte applicants sought contempt orders against interested party Dominic Mwangangi for disobeying court orders of 24 March 2022, which granted leave to commence judicial review proceedings to operate as a stay of implementation of a Minister's decision in Appeal No 125 of 2018 concerning land parcel No Kamwimbi/Adj Set No 804. The applicants alleged that despite personal service of the orders on 4 April 2022, the interested party entered the suit land, cut down trees, destroyed beehives and burnt charcoal. The interested party opposed, arguing the application was moot, that Order 40(3) of the Civil Procedure Rules on breach of injunctions was inapplicable in judicial review proceedings, and that the stay was directed only at Ministry of Lands officials and did not touch use and occupation of land. The court framed two issues: whether the interested party was in contempt, and whether the applicants were entitled to the orders sought. Applying the three-part test - existence and terms of the order, knowledge, and breach - and finding service acknowledged by signature and uncontroverted affidavit evidence, the court held the stay bound everyone, not only Lands officials, and found the interested party guilty of contempt. The court directed the OCS Kathwana to arrest and produce him for mitigation and sentencing, with costs to the applicants.

Key legal issues

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01

Whether contempt was proved

Holding

Yes - the order existed, was personally served and its terms known, and the interested party disobeyed it; he was found guilty of contempt.

Reasoning

The court found service was effected by a licensed process server and acknowledged by signature; the interested party filed only grounds of opposition and did not controvert the affidavit evidence. The terms of the stay order were clear and unambiguous, and evidence of cutting trees, destroying beehives and burning charcoal on the suit parcel showed wilful disobedience of the stay of implementation of the Minister's decision.

p. 6
02

Scope of the stay order - whether it bound only Ministry of Lands officials

Holding

The stay prohibited everyone from implementing the Minister's decision, including the interested party.

Reasoning

The interested party argued that the stay of the Minister's decision was directed only at Ministry of Lands officials and had no bearing on use and occupation of land. The court rejected this, holding the terms of the orders were clear and unambiguous, prohibiting implementation of the decision in Appeal to the Minister No 125 of 2018 by anyone, and therefore the interested party's continued acts on the land constituted breach.

p. 7
03

Applicability of Order 40 Rule 3 CPR and Civil Procedure Rules in judicial review proceedings

Holding

The court applied the contempt principles notwithstanding the interested party's objection that Order 40 is inapplicable in judicial review.

Reasoning

The interested party contended that judicial review proceedings are sui generis and that Order 40(3) of the Civil Procedure Rules, aimed at disobedience of temporary injunctions, was inapplicable where no injunction was in force. The court did not expressly resolve this objection but proceeded on the general contempt jurisdiction under section 5 of the Judicature Act and the inherent power of courts to uphold their authority, finding contempt established.

p. 7

Legal principles established

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  • To succeed in civil contempt proceedings the applicant must prove the terms of the order, the respondent's knowledge of those terms, and failure to comply.
  • Knowledge of a court order supersedes the strict requirement of personal service.
  • A court order binds the party against whom it is addressed and must be obeyed until set aside, even if believed irregular or void.
  • A stay of implementation of a decision under leave for judicial review binds everyone, not only the state officials against whom the decision was made.

Court orders

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  1. 1.The Interested Party is found to be in contempt of court orders given on March 24, 2022
  2. 2.The OCS Kathwana Police Station is directed to arrest Dominic Mwangangi and produce him before the court for purposes of mitigation and sentencing
  3. 3.The matter to be mentioned on a date to be given by the court for further orders
  4. 4.Costs of the application awarded to the applicants, to be borne by the Interested Party

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3, 4; Order 53 Rule 1(3) and 1(4)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(c)
  • Constitution of KenyaArticles 10(1), 10(2)(a), 21, 22, 25(c), 40, 50(1), 159(1)
  • Judicature ActSections 3 and 5
  • English Civil Procedure Rules 1998Part 81, Rule 81.8

Cases cited (9)

  • Kristen Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No 364 of 2005
  • Basil Criticos v Attorney General & 8 others
    (2012) eKLR
  • Samuel MN Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Republic v Sub County Commissioner Baringo North & 2 others exparte Francis Kimosop & Another
    [2021] eKLR
  • Sauti Communication Limited v Communications Authority of Kenya
    (2020) eKLR
  • Trusted Society of Human Rights Alliance v Cabinet Secretary for Devolution & Planning & 3 Others
    [2017] eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Awadh v Mambu (No 2)
    No 53 of 2004 (2004) KLR 458
  • B v Attorney General
    (2004) 1 KLR 431
On appeal from
Appeal to the Minister (Minister's appeal)
Appeal No 125 of 2018
Jurisdiction invoked
Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act (Cap 21); Articles 21, 22, 25(c), 40 and 50(1) of the Constitution; section 5 of the Judicature Act (Cap 8)

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, "Republic v District Land Adjudication & Settlement Officer Igambang’ombe Sub-County & 3 others; Gitonga & another (Exparte); Mwangangi (Interested Party) (Environment and Land Civil Miscellaneous Application E007 of 2022) [2023] KEELC 446 (KLR)", Case Analysis (2023). Notice of Motion dated 5th June 2022 (Chuka JR ELC Case No E006 of 2022 - related proceedings). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/446/eng@2023-02-01

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