Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 887 (KLR)
The bottom line
#A Kenyan land buyer who ignored a court order barring land sale was found in contempt, proving court orders bind you even if you were never personally served.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the order with penal notice was a precondition to contempt
Counsel's presence when the order was made suffices; the respondent cannot claim ignorance.
The court relied on Shimmers Plaza Ltd v National Bank of Kenya and Justus Kariuki Mate & Another v Martin Nyaga Wambora, holding that where an advocate is in court when orders are made, it is presumed he reports to the client. The respondent's own affidavit admitted awareness of the eviction order, undermining the claim of non-service.
Whether the respondent's sub-division and sale amounted to contempt
Yes; the sub-division on May 7, 2021 and transfer on August 23, 2021 breached the subsisting restraint order.
Muchelule J's order restrained all parties from sub-dividing or alienating their respective parcels until the appeal was determined. No order lifting or varying it had been made. The respondent sub-divided parcel 1915 and sold parcel 9013 to Wyclifie Wanjala Wamalwa, who charged it to Equity Bank for Kshs 5,600,000. Delay in prosecuting the appeal was largely attributable to the subordinate court's failure to avail the record and did not excuse disobedience.
Whether leave was required before commencing contempt proceedings
No leave was required for committal proceedings arising from breach of a judgment or order.
Counsel for the respondent, relying on Samwel M N Weru & Others v National Land Commission, argued that no leave was sought. The court held that the applicants properly invoked sections 3A and 63(c) of the Civil Procedure Act, and per Christine Wangari Chege v Elizabeth Wanjiru Evans, leave is unnecessary for committal for breach of an order.
Legal principles established
#- Knowledge of an order by a party's advocate who was present in court when it was made suffices for contempt proceedings; personal service with penal notice is not always necessary.
- There is an unqualified obligation to obey court orders until discharged, even where the person believes the order to be irregular or void.
- Leave is not necessary where committal proceedings for contempt relate to a breach of a judgment, order or undertaking.
Court orders
#- 1.Philip Simiyu Zakali is found to be in contempt of the orders issued on December 18, 2012
- 2.Summons to issue for Philip Simiyu Zakali to appear before Cherono J at the Bungoma ELC on February 27, 2023 at 9am for further orders
- 3.The respondent shall meet the costs of this application
- On appeal from
- Bungoma Chief Magistrate's Court
- CMCC No 592 of 2007
- Jurisdiction invoked
- Sections 3A and 63(c) of the Civil Procedure Act (inherent powers and power to punish disobedience of injunction orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 887 (KLR)", Case Analysis (2023). Bungoma ELC Appeal (contempt application dated July 18, 2022; appeal filed June 15, 2009, decree in Bungoma CMCC No 592 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/887/eng@2023-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.