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ELCDismissedEnvironment and Land Appeal E059 of 2023· [2023] KEELC 20373 (KLR)

Ogle v Sheikh & 2 others

Environment and Land Court
28 September 2023
2,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (LN Mbugua, J) on an application dated 9.6.2023 by the appellant, Katra Abdi Ogle, seeking stay of execution of a ruling of the Principal Magistrate delivered on 12.5.2023 in MC ELC/E438/2022, stay of proceedings in that suit pending appeal, and an order that the Deputy Registrar avail the original trial court file. The appellant argued she had been found in contempt of a court order said to be dated 10.1.2022 which was non-existent because the underlying suit was filed on 17.12.2022, and that the trial court had relied on the invalid Contempt of Court Act, 2016. The respondents, who describe themselves as tenants of land adjacent to Ainsworth Primary School, opposed, producing a certified copy of orders dated 10.1.2023 prohibiting interference with their possession, and alleging the appellant had erected structures in breach, withdrawn an earlier suit (ELC 169 of 2022) to defeat a contempt application, and omitted interested parties from the appeal. The court framed three issues: stay of execution, stay of proceedings, and availing the file. It found the 2022 date was a typographical error, that the trial ruling never relied on the Contempt of Court Act, and that magistrates' courts have contempt powers under the Magistrates' Courts Act, 2015 and Section 63(c) of the Civil Procedure Act. It further held the appellant failed to disclose material facts and approached the court with unclean hands. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the contempt order under appeal rested on a non-existent order

Holding

The reference to an order of 10.1.2022 was a typographical error; the certified order is dated 10.1.2023 and its existence was not challenged

Reasoning

The Respondents annexed a certified copy of the orders said to have been disobeyed, dated 10.1.2023. The court found the year 2022 in the ruling was a typographical error, curable under Order 45 Rule 1(b) of the Civil Procedure Rules, so the foundation of the contempt finding was valid.

p. 3
02

Whether the trial court unlawfully relied on the Contempt of Court Act, 2016

Holding

Although the Act was cited in the application before the trial court, the ruling of 12.5.2023 did not rely on it; magistrates' courts have contempt powers under the Magistrates' Courts Act and Section 63(c) of the Civil Procedure Act

Reasoning

The court examined the trial application's legal anchors and found the ruling never addressed the Contempt of Court Act. It held magistrates' courts have unlimited jurisdiction to punish for contempt under Section 10 of the Magistrates' Courts Act, 2015, and under Section 63(c) of the Civil Procedure Act and Order 40 rule 3(1).

p. 3
03

Whether stay of execution and stay of proceedings should issue

Holding

Both refused: no sufficient grounds for stay of execution, and the test for stay of proceedings is high and stringent, not met where the suit is at an infancy stage

Reasoning

Applying Order 42 Rule 6(1) and the Onyango test, the court found no sufficient cause. For stay of proceedings it applied Kenya Wildlife Service v Mutembei, stressing the grave interference with access to justice, and noted the applicant's non-disclosure and unclean hands.

04

Effect of the applicant's non-disclosure and conduct

Holding

The applicant withdrew her earlier suit ELC 169 of 2022 when a contempt application was filed against her, failed to disclose material facts and approached the court with unclean hands, disqualifying her from discretionary relief

Reasoning

The court noted the unrebutted averments in the replying affidavit detailing the previous case E169 of 2022 and its withdrawal to defeat the contempt application. Citing Re Estate of Julius Ndubi Javan on utmost good faith, it held the applicant did not deserve the court's discretion.

p. 4

Legal principles established

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  • Stay of execution is a discretionary relief to be exercised judiciously upon defined principles, only where sufficient cause is shown
  • Magistrates' courts have jurisdiction to punish for contempt of court orders
  • Stay of proceedings is a grave judicial action with a high and stringent test, distinct from stay of execution
  • Parties must make full disclosure of all material facts; non-disclosure and unclean hands disentitle a litigant to discretionary relief

Court orders

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  1. 1.The application dated 9.6.2023 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 13(1) & 2
  • Civil Procedure Rules, 2010Order 42 Rule 6(1)
  • Civil Procedure Rules, 2010Order 40 rule 3(1)
  • Civil Procedure Rules, 2010Order 45 Rule 1(b)
  • Evidence Act, Cap 80Section 106B(4); Section 78A
  • Contempt of Court Act, 2016Sections 4(1)(a), 6(c), 28(1)(6)
  • Civil Procedure ActSections 3, 3A, 63(c) & (e)
  • Constitution of Kenya, 2010Article 23(1)
  • Magistrates' Courts Act, 2015Section 10(3)

Cases cited (5)

  • Dande & 3 others v Director of Public Prosecutions & 2 others (Petition 4 (E005) of 2022) [2022] KESC 23 (KLR) (19 May 2022) (Ruling)
    [2022] KESC 23 (KLR)

    Filing documents in defiance of court directions is irregular; such documents are disregarded

  • Loice Khachendi Onyango v Alex Inyangu & another [2017] eKLR
    [2017] eKLR

    Stay of execution is discretionary and must be exercised judiciously upon defined principles where sufficient cause is shown

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

    Magistrates' Courts Act, 2015 gives magistrates' courts unlimited jurisdiction to punish for contempt

  • Kenya Wildlife Service v James Mutembei [2019] eKLR
    [2019] eKLR

    Stay of proceedings is a grave judicial action; the test is high and stringent

  • Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR
    [2018] eKLR

    Parties must make full disclosure of all material facts; non-disclosure undermines justice

On appeal from
Milimani Magistrates Court (Principal Magistrate)
MC ELC/E438/2022
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts (Environment and Land Court Act); application brought under Order 42 Rule 6(1) of the Civil Procedure Rules

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, "Ogle v Sheikh & 2 others", Case Analysis (2023). Environment and Land Appeal E059 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20373/eng@2023-09-28

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