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ELCPartially AllowedEnvironment & Land Case E337 of 2022· [2023] KEELC 18888 (KLR)

Nasteho Abdi Mohamed v Wilson Kaisogo Ogero & another

Environment and Land Court
20 July 2023
AOA. A. Omollo
1,881 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 court confirmed that disobeying a court order can be punished even after that order is later set aside.

What this practically means

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Executive summary

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The plaintiff sued the defendants for trespass over LR No 36/163/VII and obtained an interim order on November 1, 2022 restraining continued construction pending the next court date. By notice of motion dated January 12, 2023, supported by an affidavit of Michael Osundwa Sakwa, the plaintiff sought contempt orders against the 1st defendant, including detention, sequestration, attachment of property and a declaration of contempt. The defendants opposed, contending they own a different parcel (LR No 36/VII/163), that the photographs relied on were blurry and undated, and that the November 1, 2022 orders had been set aside when the plaintiff's application dated October 6, 2022 was dismissed on February 6, 2023. The court framed two issues: whether the contempt application lay, and whether contempt was proved. Relying on Samuel M.N Mweru v National Land Commission, it held the obligation to obey a subsisting order is plain and unqualified, even if believed irregular or void, and that the subsequent dismissal of the injunction application did not divest the court of power to punish disobedience committed while the order stood. Knowledge was established because the order issued in the presence of the defendants' counsel (Shimmers Plaza Ltd v National Bank). The court found evidence of disobedience of a lawful order, allowed the motion in terms of prayer 4 only, directed the 1st respondent to appear for showing cause and sentencing, and awarded costs to the plaintiff.

Key legal issues

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01

Whether contempt proceedings survive the subsequent dismissal of the underlying application and setting aside of the order

Holding

Yes - the court retains power to punish disobedience committed while the order was valid

Reasoning

The contempt motion was filed while the November 1, 2022 order was still in force. The obligation to obey a court order is plain and unqualified and extends to cases where the person affected believes the order to be irregular or void. The subsequent dismissal of the injunction application and setting aside of the order could not retrospectively excuse disobedience that occurred while the order stood.

p. 3
02

Whether the applicant proved wilful disobedience of the November 1, 2022 order

Holding

Yes - knowledge was established through counsel's presence, and evidence of ongoing construction was unrebutted on the critical points

Reasoning

The order was made in the presence of the respondents' advocate, so they are deemed to have known it. The respondents' objections that the photographs were undated did not establish they predated the order, and their claim to be building on their own parcel did not justify disobedience since ownership of the disputed plot was itself the subject of the suit.

p. 4

Legal principles established

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  • A party is bound to obey a court order until it is discharged, even if he believes it to be irregular or void
  • A party represented by an advocate when an order is made is deemed to have knowledge of that order
  • Subsequent discharge of an order does not divest the court of power to punish for contempt committed while the order was in force

Court orders

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  1. 1.Notice of motion dated January 12, 2023 allowed in terms of prayer 4 - declaration that Wilson Kaisogo Ogero is guilty of contempt of court for disobeying the order issued on November 1, 2022
  2. 2.The 1st respondent to appear before the court on a date to be given for showing cause and sentencing
  3. 3.Costs of the application awarded to the plaintiff/applicant

Authorities

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Cases cited (3)

  • Kristen Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No 364 of 2005

    Elements of civil contempt: terms of the order, knowledge of the terms, and failure to comply

  • Samuel M.N Mweru and others v National Land Commission and 2 others
    [2020] eKLR

    Obligation to obey court orders until discharged; courts should not condone deliberate disobedience

  • Shimmers Plaza Ltd v National Bank
    (2015) eKLR

    A party represented by an advocate is deemed to have knowledge of a court order the advocate is aware of

Jurisdiction invoked
Contempt jurisdiction of the Environment and Land Court under the law on civil contempt (no specific statutory provision cited in the ruling)

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, "Nasteho Abdi Mohamed v Wilson Kaisogo Ogero & another", Case Analysis (2023). Environment & Land Case E337 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18888/eng@2023-07-20

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