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ELCStruck OutMiscellaneous Application E011 'B' of 2023· [2023] KEELC 19958 (KLR)

Mungai v Njunge

Environment and Land Court
19 September 2023
JKJ G Kemei
1,660 words in judgment
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The bottom line

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A Kenyan court confirmed magistrates can punish contempt of their own injunctions, but struck out the application for being filed in the wrong forum.

What this practically means

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Executive summary

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The Applicant sought leave to commence contempt proceedings against the Respondent and her committal to civil jail for disobeying injunction orders issued on 28/3/2022 by the Kikuyu Senior Principal Magistrate's Court in MCLC No. E90 of 2021, restraining her from encroaching on, occupying, developing or dealing with land parcel Muguga/Muguga/4200. The orders were served on the Respondent and her advocate in May 2022. The Respondent opposed the application, conceding service but denying any breach, asserting she had built a permanent house, fenced the land and planted trees before the orders, and challenging the capacity of the Applicant's counsel to swear the supporting affidavit. The court, before determining whether contempt was proved, examined the jurisdiction of the Magistrate's Court in contempt matters. Relying on Section 10 of the Magistrates' Court Act, 2015 and the Ramadhan Salim, Esther Nyagutii Maina and Re ZJA & TA authorities, J G Kemei J held that the Magistrate's Court has jurisdiction to punish for contempt of its own orders, including temporary injunctions, and that the nullification of the Contempt of Court Act did not affect this power. Concluding that justice would be better served if the application were mounted in the proper forum, the court struck out the application and made no orders as to costs. The merits of the alleged contempt were not determined.

Key legal issues

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01

Jurisdiction of the Magistrate's Court to punish for contempt of its orders

Holding

The Magistrate's Court has jurisdiction to punish for contempt of its own orders, including temporary injunctions, by virtue of Section 10 of the Magistrates' Court Act, 2015 which came into force on 2 January 2016

Reasoning

The court analysed Section 10 of the Magistrates' Court Act and case law. Prior to 2015 magistrates had no contempt powers, which rested in the High Court (read ELC) and Court of Appeal. The 2015 Act gave magistrates unlimited jurisdiction to punish for contempt. The nullification of the Contempt of Court Act in 2018 did not affect Section 10(3) of the Magistrates' Court Act. Since the disobeyed orders were a temporary injunction, the magistrate's court has jurisdiction.

p. 4

Legal principles established

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  • The Magistrates' Court has jurisdiction under Section 10 of the Magistrates' Court Act, 2015 to punish for contempt of its own orders, including interlocutory orders such as temporary injunctions

Court orders

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  1. 1.The application dated 27/1/2023 is struck out to enable the Applicant mount the application in the right fora
  2. 2.No orders as to costs

Authorities

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Legislation

  • Magistrates' Court ActSection 10
  • Contempt of Court ActSection 36

Cases cited (3)

  • Ramadhan Salim Vs. Evans M. Maabi T/A Murhy Auctioneers & Another
    [2016] eKLR

    Magistrate's court has jurisdiction to punish contempt of a temporary injunction but not a mandatory injunction issued pre-2015 Act

  • Esther Nyagutii Maina Vs. Rachel Wanjiku Kamara & Another
    [2020] eKLR

    Section 10(3) covers civil proceedings; disobedience of a decree or order constitutes contempt punishable by the same court

  • Re ZJA & TA (Minors)
    [2020] eKLR

    Nullification of the Contempt of Court Act in 2018 has no effect on the Magistrate's Court punishing contempt under Section 10(3) of the Magistrates' Court Act

Jurisdiction invoked
Environment and Land Court Act jurisdiction over contempt of orders issued in a subordinate court land suit; Section 10 of the Magistrates' Court Act considered

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, "Mungai v Njunge", Case Analysis (2023). Miscellaneous Application E011 'B' of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19958/eng@2023-09-19

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