Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case E004 of 2023· [2023] KEELC 21643 (KLR)

Arusei & another v Tabut & 3 others

Environment and Land Court
16 November 2023
MMM. N. MWANYALE
2,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a contempt claim because the fence was built before the court order existed, but allowed a fresh claim over sugarcane planting.

What this practically means

#

Executive summary

#
This ruling by M. N. Mwanyale J of the Environment and Land Court at Kapsabet determined a Notice of Motion dated 21st August 2023 in which the Plaintiffs sought committal of the four Defendants to civil jail for disobeying status quo orders issued on 15th August 2023 over land parcels Nandi/Ndalat/584 and 585, together with orders to purge the contempt by removing structures and fencing and restoration of the status quo with OCS Ndalat's assistance. The Respondents opposed, arguing first that the pleadings were drawn by Mr. Christopher Arap Mitei Advocate, an unqualified person lacking a practising certificate, relying on the Advocates Act and National Bank of Kenya v Ayah; and second that no orders were breached because the fencing complained of occurred on or before 9th August 2023, before the orders issued. The Court held the unqualified-person objection unfounded: Irine Jepkemboi Advocate signed the applications and deponed to having personal conduct of the matter, and the Respondent failed to discharge the burden under Section 107 of the Evidence Act of proving Mitei personally signed the pleadings. On contempt, the Court found the fencing was done before the 15th August 2023 orders, so no orders were breached; the supplementary affidavit abandoned fencing and introduced a new alleged breach (planting sugarcane). The application was dismissed with costs, with liberty to file a fresh contempt application on the sugarcane issue.

Key legal issues

#
01

Whether pleadings were drawn by an unqualified person

Holding

Objection unfounded; pleadings were signed by Irine Jepkemboi Advocate whose qualifications were not challenged

Reasoning

Although Arap Mitei Advocate lacked a practising certificate, the Respondent did not discharge the evidential burden of showing he personally signed the pleadings. Jepkemboi Advocate signed the Chamber Summons and deponed she signed all documents and had personal conduct of the suit; the Court saw no reason to doubt her sworn depositions.

02

Whether the fencing constituted contempt of the 15/8/2023 orders

Holding

No contempt; fencing occurred on or before 9th August 2023, before the orders were issued

Reasoning

The certificate of urgency itself alluded to forceful entry on 9/8/2023, prompting the application of 10/8/2023, with orders issued on 15/8/2023. Acts preceding an order cannot breach it. The supplementary affidavit introduced a new alleged breach (planting sugarcane) and abandoned fencing.

p. 5

Legal principles established

#
  • An act done before the issuance of a court order cannot constitute contempt of that order
  • A party alleging pleadings were drawn by an unqualified advocate bears the burden of proving that the unqualified person personally signed the pleadings

Court orders

#
  1. 1.The application dated 21st August 2023 (referred to in the final order as 18th August 2023) for contempt is dismissed with costs
  2. 2.Applicants granted liberty to file a fresh contempt application based on the alleged planting of sugar cane after the status quo orders

Authorities

#

Legislation

  • Advocates ActSections 9, 38 and 48
  • Judicature ActSection 5
  • Evidence ActSection 107

Cases cited (4)

  • Kenya Tea Growers Association v Francis Atwoli and 5 others
    (2012) eKLR

    Orders of the Court must be obeyed; wilful disobedience punishable as contempt even if the order was improperly obtained or too wide

  • Basil Criticos v Attorney General and 8 others
    (2012) eKLR

    Knowledge of orders supersedes personal service

  • Mutitika v Baharini Farm Limited
    (1985) KLR 229

    Standard of proof in contempt higher than balance of probabilities but not beyond reasonable doubt

  • National Bank of Kenya v Ayah
    (2019) KLR

    Pleadings drawn by an unqualified person ought to be struck out

Jurisdiction invoked
Environment and Land Court jurisdiction over contempt of its orders (contempt application under the Court's inherent powers; Judicature Act s.5 invoked by parties)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Arusei & another v Tabut & 3 others", Case Analysis (2023). Environment & Land Case E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21643/eng@2023-11-16

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