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ELCAllowedBungoma ELC Appeal (contempt application dated July 18, 2022; appeal filed June 15, 2009, decree in Bungoma CMCC No 592 of 2007)· [2023] KEELC 887 (KLR)

Muchelesi & 2 others v Zakali (Environment and Land Appeal 22 of 2018) [2023] KEELC 887 (KLR)

Environment and Land Court
14 February 2023
2,116 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by Boaz N. Olao J of the Environment and Land Court at Busia, delivered on February 14, 2023, determines a Notice of Motion dated July 18, 2022 by Rasoa Nakhanu Muchelesi, John Juma Muchelesi and Wanyonyi Muchelesi seeking that Philip Simiyu Zakali be cited and punished for contempt, that he purge the contempt, and for conservatory orders over the suit property pending the hearing and determination of their appeal against the decree in Bungoma CMCC No 592 of 2007. Muchelule J (as he then was) had on September 18, 2012 stayed further execution and restrained all parties from sub-dividing or alienating their respective parcels pending the appeal. The applicants established that the respondent nonetheless sub-divided parcel East Bukusu/South Nalondo/1915 on May 7, 2021 into parcels 9012 and 9013, and on August 23, 2021 transferred parcel 9013 to one Wyclifie Wanjala Wamalwa, who charged it to Equity Bank (K) Ltd to secure Kshs 5,600,000. The respondent's defence of non-service with a penal notice was rejected: his advocate was present when the order was made, and per Shimmers Plaza Ltd v National Bank of Kenya and the Wambora case, counsel's knowledge suffices. The court also applied Hadkinson v Hadkinson and Refrigeration & Kitchen Utensils Ltd v Gulabchand Popatlal Shah on the mandatory nature of obeying court orders, and held per Christine Wangari Chege that leave was unnecessary for committal proceedings for breach of an order. The court found the respondent in contempt and directed that summons issue for him to appear before Cherono J at the Bungoma ELC on February 27, 2023 for further orders, with costs of the application to the respondent.

Key legal issues

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01

Whether service of the order with penal notice was a precondition to contempt

Holding

Counsel's presence when the order was made suffices; the respondent cannot claim ignorance.

Reasoning

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.

p. 3
02

Whether the respondent's sub-division and sale amounted to contempt

Holding

Yes; the sub-division on May 7, 2021 and transfer on August 23, 2021 breached the subsisting restraint order.

Reasoning

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.

p. 4
03

Whether leave was required before commencing contempt proceedings

Holding

No leave was required for committal proceedings arising from breach of a judgment or order.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Philip Simiyu Zakali is found to be in contempt of the orders issued on December 18, 2012
  2. 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. 3.The respondent shall meet the costs of this application

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(c)

Cases cited (6)

  • Shimmers Plaza Limited -v- National Bank Of Kenya
    2015 eKLR
  • Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another
    Civil Appeal No 24 of 2014 (Nyeri)
  • Hadkinson v Hadkinson
    1952 All ER 567
  • Refrigeration And Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another
    Civil Application No 39 of 1990
  • Samwel M N Weru & Others v The National Land Commission
    Misc Civil Application No 443 of 2017
  • Christine Wangari Chege v Elizabeth Wanjiru Evans & Others
    Civil Application No 233 of 2007 [2014 eKLR]
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

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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, "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.