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ELCDismissedNotice of Motion dated May 20, 2022 (appeal pending before the Environment and Land Court, Migori)· [2023] KEELC 613 (KLR)

Otieno v Obado & 2 others (Environment & Land Case E011 of 2022) [2023] KEELC 613 (KLR)

Environment and Land Court of Kenya
24 January 2023
1,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to jail parties for disobeying a stay order, but froze all construction on the disputed land until the appeal is decided.

What this practically means

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Executive summary

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By Notice of Motion dated May 20, 2022, the appellant, acting through Fredrick Nyamgeroh under a Power of Attorney, sought warrants of arrest against the respondents for alleged breach of stay orders issued by the trial court on April 20, 2022, together with a permanent order restraining the respondents from trespassing on, erecting structures on, or dealing with title Number Kanyamkago/Katieno/133. The appellant alleged the respondents had moved onto the suit land and begun building a perimeter wall. The respondents, whose suit had been struck out with costs by the trial court, denied initiating any execution, and argued that the application was not brought under section 5 of the Judicature Act and should have been filed in the court that issued the orders. Kullow J identified the sole issue as whether the application was merited. Applying the test in Kristen Carla Burchell v Barry Grant Burchell, the court found the terms of the order and knowledge of them undisputed, but no willful disobedience: the trial court's striking-out order was a negative order incapable of execution, costs being the only positive award, and no evidence of execution proceedings (no bill of costs or certificate) was adduced. Following Western College v Oranga and Co-operative Bank v BIFU, prayer (b) failed. Permanent restraining orders were also refused as not legally tenable at the interlocutory stage. The application was dismissed with no orders as to costs, but the court, on its own motion, ordered status quo to be maintained pending the appeal, directed the respondents not to erect permanent structures or continue ongoing construction, and gave directions for filing the Record of Appeal within 30 days, with the status quo orders lapsing on default.

Key legal issues

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01

Whether the respondents were in contempt of the stay orders issued on April 20, 2022

Holding

No contempt was established. The trial court's ruling struck out the suit with costs; striking out is a negative order incapable of execution, and the only positive order (costs) was not being executed, no bill of costs or certificate of costs having been filed.

Reasoning

The court applied the three-element test from Kristen Carla Burchell v Barry Grant Burchell: terms of the order, knowledge, and failure to comply, with willfulness inferred. The first two elements were undisputed, but on willful disobedience the court examined the substance of the trial court's ruling. Following Western College of Arts and Applied Sciences v Oranga and Co-operative Bank of Kenya Ltd v BIFU, it found nothing to execute save costs, and no evidence of execution proceedings.

p. 4
02

Whether permanent restraining orders could be granted at the interlocutory stage

Holding

No; permanent injunctions can only be granted upon hearing and determination of the suit on merit, and the applicant adduced no proof to warrant interim relief of that nature.

Reasoning

The court held that a permanent order restraining the respondents from trespassing, erecting structures or dealing with the suit land was not legally tenable at this stage. Such orders follow trial on the merits unless the applicant satisfactorily demonstrates entitlement to interim relief, which was not done. Prayer (c) therefore failed. However, invoking the pendency of the appeal, the court issued status quo and no-construction directions on its own motion.

p. 4

Legal principles established

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  • Civil contempt requires proof of the terms of the order, knowledge of those terms by the respondent, and failure to comply, whereafter willfulness and bad faith are inferred
  • A court order dismissing or striking out a suit is a negative order incapable of execution; only costs constitute the positive order
  • An order for stay of execution delays performance of positive obligations in a decree; there must be a positive order to stay

Court orders

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  1. 1.Application dated May 20, 2022 dismissed with no orders as to costs
  2. 2.Status Quo to be maintained pending the hearing and determination of the Appeal
  3. 3.Respondents directed not to put up any permanent structures on the suit parcel and to stop any ongoing constructions thereon
  4. 4.Appellant directed to file the Record of Appeal within 30 days
  5. 5.Parties to file respective submissions within 14 days for the Appellant and 14 days upon service for the Respondents, failing which the Status Quo Orders shall lapse
  6. 6.Mention on March 27, 2023 to confirm compliance and fix a judgment date

Authorities

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Legislation

  • Judicature Actsection 5
  • English Civil Procedure RulesRule 81.4

Cases cited (6)

  • Kristen Carla Burchell vs Barry Grant Burchell
  • Catherine Njeri Maranga v Serah Chege & another
    [2017] eKLR
  • Western College of Arts and Applied Sciences v Oranga & others
    (1976-80) 1 KLR
  • Wilson v Church
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
On appeal from
Trial court (magistrates' court)
null
Jurisdiction invoked
Appellate and supervisory jurisdiction of the Environment and Land Court over the trial court's ruling of April 20, 2022, including enforcement of its own stay orders (contempt proceedings under 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, "Otieno v Obado & 2 others (Environment & Land Case E011 of 2022) [2023] KEELC 613 (KLR)", Case Analysis (2023). Notice of Motion dated May 20, 2022 (appeal pending before the Environment and Land Court, Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/613/eng@2023-01-24

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