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ELCPartially AllowedEnvironment & Land Case E84 of 2021· [2023] KEELC 18819 (KLR)

Kiere v Karaithi & 6 others; District Land Registrar, Nakuru (Interested Party); Githigi (Contemnor)

Environment and Land Court
11 July 2023
AOA O Ombwayo
1,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court jailed two men for three months for ignoring a land injunction, showing Kenyan courts will punish disobedience of orders.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (A O Ombwayo, J) determined an unopposed application dated 15th May 2023 by the plaintiff, Patrick Githinji Kiere, seeking committal of Michael Maina Karaithi and Zacharia Maina Gathigi to civil jail for six months, or alternatively a fine of Kshs 1,000,000 each, for disobeying a court order of 21st March 2022. That order had directed that the plaintiff remain in possession of suit property Solai/Arutani Block 1/99 pending determination of the suit, with no party to sell, transfer or charge the property. The applicant alleged that the 1st respondent leased the property to Gathigi, who on 3rd and 4th May 2023 destroyed hay, ploughed and planted crops on the land, and described the court order as worthless pieces of paper. The application was unopposed despite evidence of service. The court held that contempt is quasi-criminal and requires proof higher than balance of probabilities, citing Econet Wireless, Gatharia K. Mutikika and the Indian Supreme Court's decision in T. N. Gadavarman Thiru Mulpad. Finding the order clear, unambiguous and disobeyed, and the allegations uncontroverted, the court committed each contemnor to jail for three months, with an option of a fine of Kshs 500,000 each, and awarded costs of the application to the applicant.

Key legal issues

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01

Whether the respondents were in contempt of the order of 21st March 2022

Holding

The court found the respondents in contempt as the allegations were uncontroverted despite service

Reasoning

The application was unopposed; no replying affidavit was filed despite evidence of service. The court found the order clear and unambiguous and disobeyed. Applying the standard of proof consistent with the gravity of contempt, the uncontroverted evidence of ploughing, planting and destruction of hay satisfied the court that the respondents willfully disobeyed the order.

02

Appropriate sanction for contempt

Holding

Each contemnor committed to jail for 3 months with an option of a fine of Kshs 500,000 each

Reasoning

The court invoked Order 40 rule (3), which permits attachment of property and detention in prison for a term not exceeding six months for disobedience of a temporary injunction. It exercised discretion to impose a three-month term with a fine option, less than the six months and Kshs 1,000,000 sought.

p. 4

Legal principles established

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  • Contempt proceedings are criminal in nature and require proof higher than balance of probabilities; the applicant must prove willful and deliberate disobedience
  • A party cited for contempt must have had personal knowledge of the order through service
  • For a party to be cited for contempt, he must have violated or disobeyed an order directed at him

Court orders

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  1. 1.Each of Mr Michael Maina Karaithi and Zacharia Maina Gathigi committed to jail for a term of 3 months for contempt
  2. 2.Option of a fine of Kshs 500,000 each in lieu of imprisonment
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure RulesOrder 40 rule (3)

Cases cited (3)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another
    [2005] KLR 828

    Obligation of every person to obey court orders unless and until discharged, even if believed irregular or void

  • T. N. Gadavarman Thiru Mulpad v Ashok Khot And Anor
    [2006] 5 SCC

    Disobedience of court orders strikes at the root of the rule of law

  • Gatharia K. Mutikika v Baharini Farm Limited
    [1985] KLR 227

    Contempt is of criminal character; standard of proof higher than balance of probabilities, consistent with gravity of the charge

Jurisdiction invoked
Section 5 of the Judicature Act; Order 40 rule (3) of the Civil Procedure Rules (2010)

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, "Kiere v Karaithi & 6 others; District Land Registrar, Nakuru (Interested Party); Githigi (Contemnor)", Case Analysis (2023). Environment & Land Case E84 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18819/eng@2023-07-11

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