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ELCPartially AllowedEnvironment & Land Petition E001 of 2023· [2023] KEELC 22015 (KLR)

Yano v County Government of Elgeyo Marakwet; Cheboi & another (Affected Party)

Environment and Land Court
30 November 2023
LWL. N. Waithaka
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that hiring a contractor does not shield you from contempt if a court order is disobeyed — you must prove you took steps to comply.

What this practically means

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Executive summary

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This ruling by L. N. Waithaka J of the Environment and Land Court at Iten determines a notice of motion dated 5th June 2023 in which the petitioner, Pius Kiptum Yano, sought to have Elias Cheboi and Joan Jepkosgei Cheboswony, officers of the County Government of Elgeyo Marakwet, punished for contempt of a conservatory order issued on 20th March 2023 restraining the respondent from trespassing on or interfering with his occupation of parcels Cherangany/Kapcherop/1300 and 1174. The petitioner alleged that the officers, aware of the order, deliberately caused a road grader (registration KHMA 791C) to trespass onto the suit land and expand an unfinished road, causing substantial loss. The contemnors denied wilful disobedience, asserting they had instructed a contractor to skip the disputed section, and raised objections including lack of a penal notice, alleged imprecision of the order, and the involvement of an independent contractor. The court framed a single issue: whether the applicant had made out a case for the orders sought. Holding that the contemnors had not disputed knowledge of the order and had adduced no evidence of measures taken to ensure compliance, the court rejected the third-party excuse and found the applicant had made out a case. It issued a notice requiring the two officers to appear on 6th December 2023 to show cause why they should not be punished for disobedience of the 20th March 2023 order. No costs order was recorded.

Key legal issues

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01

Whether the contemnors wilfully disobeyed the conservatory order of 20th March 2023

Holding

The court found the applicant had made out a case for a notice to show cause, since the contemnors admitted knowledge of the order and offered no evidence of measures taken to ensure compliance

Reasoning

The contemnors did not dispute knowledge of the order. Their explanation - that they instructed an independent contractor to skip the disputed section - was rejected because they bore full responsibility for compliance and adduced no evidence of any measures taken to ensure the order was obeyed. The excuse that a third party disobeyed the order was therefore untenable, justifying a notice to show cause.

p. 4

Legal principles established

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  • A party who procures a contractor cannot escape contempt liability by attributing the disobedience to that third party; the party responsible for compliance must show measures taken to ensure the order was obeyed

Court orders

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  1. 1.A notice to show cause issued requiring Elias Cheboi and Joan Jepkosgei Cheboswony to appear before the court on 6th December 2023 and show cause why they should not be punished for wilful disobedience of the order of 20th March 2023
Jurisdiction invoked
Original contempt jurisdiction of the Environment and Land Court under its constitutional mandate to protect the environment and land (Articles 162(2)(b) and 165; Environment and Land Court Act) - not expressly 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, "Yano v County Government of Elgeyo Marakwet; Cheboi & another (Affected Party)", Case Analysis (2023). Environment & Land Petition E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22015/eng@2023-11-30

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