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ELCPartially AllowedNot stated in judgment· [2023] KEELC 547 (KLR)

Waswa v Samoei & another; Kenya Commerical Bank (Interested Party) (Environment & Land Case 158 of 2017) [2023] KEELC 547 (KLR)

Environment and Land Court
30 January 2023
735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court at Kitale ordered a defendant to civil jail for ignoring court orders and joined KCB to contest a post-decree land charge.

What this practically means

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Executive summary

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This is a ruling by F. Nyagaka, Judge of the Environment and Land Court at Kitale, delivered on January 30, 2023 on an application dated November 10, 2022 arising from the plaintiff's execution of a decree. The application had been served on the respondent's advocates and on the Kenya Commercial Bank, Kitale Branch, as proved by affidavits of service; the hearing notice to the bank was stamped by the Branch Manager. The respondent's counsel sought an adjournment, citing a family emergency. The court found the reasons insufficient and unexplained, noting that counsel had taken the hearing date by consent on November 22, 2022 and had over two months to respond to the application. The adjournment was refused as a delaying tactic, the respondents having charged the suit property to the bank despite knowledge of the decree. The application being unopposed by grounds of opposition, preliminary objection or replying affidavit, the court allowed it in part. The 2nd defendant was ordered committed to civil jail, or his goods seized, in satisfaction of the court's orders upon arrest and arraignment. Kenya Commercial Bank was enjoined as an interested party post judgment solely to contest or consent to a future application seeking a declaration that the charging of title No. Kitale Municipality Block 1/Lessos/1558 to the bank after the decree was illegal, null and void. A further prayer was struck out as against a non-enjoined party. Costs were awarded to the applicant, with mention set for February 27, 2023.

Key legal issues

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01

Service of the application and hearing notice

Holding

Service on both the respondent's advocates and the Kenya Commercial Bank, Kitale Branch was properly effected and proved by affidavits of service

Reasoning

The court noted affidavits of service sworn on November 20, 2022 and November 24, 2022 showing receipt of the directions and hearing notice, the latter stamped by the Branch Manager of KCB Kitale. The respondent's advocate had also taken the hearing date by consent on November 22, 2022. The court was therefore satisfied as to service.

p. 1
02

Adjournment application

Holding

The adjournment application was refused as a delaying tactic

Reasoning

The nature of the family emergency cited by respondent's counsel was not stated. Counsel had appeared in other matters since taking the hearing date by consent and had offered no explanation for failing to respond to the application for over two months. The court accepted the plaintiff's submission that the adjournment was a delaying tactic, the respondents having charged the suit property to the bank and then obstructed execution.

p. 2
03

Unopposed application dated November 10, 2022

Holding

The application was allowed in part - commitment to civil jail granted, the bank enjoined as interested party post judgment for a limited purpose, and one prayer struck out

Reasoning

The application was unopposed by grounds of opposition, preliminary objection or replying affidavit. The court allowed the commitment prayer and enjoined the bank post judgment solely to contest or consent to a future application on the legality of the charge created over the suit property after the decree. The prayer against a non-enjoined party was struck out to protect that party's right to be heard.

p. 2

Legal principles established

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  • Although the Contempt of Court Act, No. 46 of 2016 was declared unconstitutional, section 5 of the Judicature Act (which it repealed) still stands in the laws of Kenya
  • Order 40 Rule 3(1) of the Civil Procedure Rules applies only to injunctions and not to post-judgment enforcement of decrees
  • A court cannot grant relief ex parte against a party who has not been enjoined in the proceedings, as that would deny the party its right to be heard

Court orders

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  1. 1.Prayer No. (2) allowed: the 2nd defendant is to be committed to civil jail and/or his goods or items be seized in satisfaction of the orders of this court, to be given when he is arrested and arraigned in court
  2. 2.Prayer No. (3) granted: Kenya Commercial Bank enjoined as an interested party post judgment solely for purposes of contesting or consenting to an application to determine whether the charging of title No. Kitale Municipality Block 1/Lessos/1558 to Kenya Commercial Bank after the decree was illegal, null and void
  3. 3.Prayer No. (4) struck out as it was brought against a party not enjoined in the proceedings
  4. 4.Costs of the application to the applicant
  5. 5.Applicant to file an application as directed
  6. 6.Mention on February 27, 2023 for further orders

Authorities

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Legislation

  • Judicature Actsection 5
  • Contempt of Court Act, No. 46 of 2016general (declared unconstitutional)
  • Civil Procedure RulesOrder 40 Rule 3(1)
Jurisdiction invoked
Inherent powers of the court over execution of its decree and enforcement of its orders; section 5 of the Judicature Act noted as still standing after repeal by the unconstitutional Contempt of Court Act, No. 46 of 2016

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, "Waswa v Samoei & another; Kenya Commerical Bank (Interested Party) (Environment & Land Case 158 of 2017) [2023] KEELC 547 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/547/eng@2023-01-30

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