Khisa v Kundu (Environment and Land Appeal 43 of 2007) [2023] KEELC 492 (KLR)
The bottom line
#A Kenyan court confirmed arrest warrants stay valid until executed, and a person ignoring court orders may lose their right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for re-issue/re-direction of warrants of arrest was merited despite the respondent's opposition
The application was merited; the warrants remained in force and were to be executed by the OCS Sikhendu within one week.
The court found the warrants had not lapsed for lack of execution, and the respondent's opposition was a technicality aimed at defeating justice. The respondent was in continuing contempt of the 2009 judgment, subsequent eviction orders and the May 5, 2021 contempt ruling, and thus did not deserve audience until purging the contempt. Article 159(2)(d) cured any procedural misapprehension.
Whether the respondent, in contempt of court, was entitled to be heard on the grounds of opposition
The respondent was in further contempt and ought not to have been granted audience until he purged it; his grounds of opposition were also improperly on record.
Relying on Muchanga Investments, Matiang'i v Miguna Miguna and Kenya Union of Post Primary Teachers v Njeru Kanyamba, the court held that where disobedience is deliberate and repetitive, the court may decline to hear the contemnor. Further, the notice of appointment of the incoming advocate was filed without the consent required under order 9 rule 9, making the grounds of opposition a filing by a stranger, liable to be struck out.
Whether the incoming advocate's notice of appointment complied with order 9 rule 9 of the Civil Procedure Rules
It did not; the notice was incompetent and improperly on record, rendering the grounds of opposition filed by a stranger and candidates for striking out.
The respondent had been represented by Zablon Mokua & Co. Advocates up to judgment and taxation, but no consent or court order permitted the incoming advocate to come on record, and order 9 rule 9 does not require consent where a party acted in person post-judgment. Substantive justice under article 159(2)(d) does not avail a party who fails to follow the proper procedure.
Legal principles established
#- Once warrants of arrest are issued by the court, they remain in force until executed, cancelled, recalled or otherwise complied with.
- A contemnor who deliberately and repetitively disobeys court orders may be denied audience until he purges the contempt.
- Order 9 rule 9 of the Civil Procedure Rules requires consent or court leave only for an advocate coming on record after judgment where another advocate was on record up to judgment, not where the party acted in person.
Court orders
#- 1.Warrants of arrest herein are still in force
- 2.The OCS Sikhendu is directed to effect the warrants of arrest within the next one (1) week, and if any expense is to be incurred in the process, the same be facilitated by the Plaintiff herein, but to be ultimately borne by the defendant upon being presented before this court
- 3.In the event that the warrants are not executed within the one (1) week, the OCS Sikhendu is directed to attend court on February 13, 2023 to show cause why that is not done
- 4.This matter be mentioned on February 13, 2023 at 9.30 am in open court for further directions
- Jurisdiction invoked
- Section 63(e) of the Civil Procedure Act; order 40 rules 3(1), (3) and (4) and order 51 rule 1 of the Civil Procedure Rules; article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karebe Gold Mining Limited & another v Korir & 14 others (Environment and Land Case E009 of 2022) [2025] KEELC 6457 (KLR)[2025] KEELC 6457 (KLR)29 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Khisa v Kundu (Environment and Land Appeal 43 of 2007) [2023] KEELC 492 (KLR)", Case Analysis (2023). Notice of motion dated July 18, 2022 (ELC, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/492/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.