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ELCPartially AllowedNotice of Motion dated 6th October, 2023 (arising from Gilbert Kimutai Koech vs. Wilson Kipngeno Koech [2018] eKLR)· [2024] KEELC 212 (KLR)

Koech v Koech & another (Environment & Land Case 22 of 2015) [2024] KEELC 212 (KLR)

Environment and Land Court
25 January 2024
5,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The court found a landowner in contempt for defying eviction orders and ordered a surveyor to re-establish property beacons with police security.

What this practically means

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Executive summary

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The Judgment Creditor/Applicant moved the Environment and Land Court at Kericho by Notice of Motion dated 6th October 2023 seeking contempt sanctions against Gilbert Kimutai Koech and Peninah Nyambura Too for disobeying eviction and permanent injunction orders issued on 7th July 2020 in the main adverse possession suit over L.R No. Kericho/Kaptebengwet/450, in which judgment had been delivered on 18th May 2018 in the Applicant's favour. He also sought a registered surveyor to demarcate the beacons on the parcel, police security during the exercise, and the Respondents' detention for up to six months. The Respondent opposed, contending he was wrongly cited, that the Objector was not party to the eviction proceedings, and that stay orders from the High Court Family Division in Succession Cause No. 6 of 2020 justified the occupation, while the Applicant had himself disobeyed those succession orders. The court framed three issues: knowledge of the orders, validity of the orders, and contempt. Applying the principle that knowledge of an order supersedes personal service, and the Burchell test for civil contempt, it found valid orders existed, had been executed on 17th July 2020, were never set aside or appealed, and that the Respondent - a former judicial officer - in cohorts with his mother wilfully defied them by violently re-entering the land, destroying the fence, demolishing the Applicant's house and constructing a permanent building. The court allowed the surveyor and security orders, found the Respondent in blatant contempt and stated it would punish him, and awarded the Applicant costs, delivering judgment on 25th January 2024.

Key legal issues

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01

Whether the Respondent was aware of the judgment and orders of 7th July 2020

Holding

The Respondent had knowledge of the orders; knowledge supersedes personal service, and nothing in his response denied knowledge of the judgment and eviction orders.

Reasoning

The court invoked the principle that knowledge of an order supersedes personal service. The Respondent had been evicted pursuant to the orders of 7th July 2020, which were executed on 17th July 2020 in the presence of the Respondents, with eviction returns filed by the OCS-Konoin Police Station. The court held it could not be said that after eviction the Respondent and his family had no knowledge of the orders.

p. 9
02

Whether valid orders existed and were breached

Holding

Valid orders of eviction and permanent injunction dated 7th July 2020 existed, were executed, and were never set aside, varied or appealed; the Respondent wilfully breached them by re-entering the land, destroying the fence, demolishing the Applicant's house and constructing a permanent building.

Reasoning

The court traced the history: judgment of 18th May 2018 dismissing the Respondent's adverse possession claim, eviction orders of 7th July 2020 executed on 17th July 2020, and no appeal or variation. The Respondent relied on alleged stay orders in Succession Cause No. 6 of 2020 obtained by material non-disclosure; the court found the orders were illegally acquired and used to dispossess the Applicant, constituting wilful defiance of the court's orders.

p. 10
03

Whether the court should assist the Applicant by having beacons re-established on the suit parcel

Holding

The order for a registered surveyor to show the Applicant the designated beacons was allowed, being consistent with Sections 18(2) and 19(2) of the Land Registration Act.

Reasoning

The court found the Applicant was entitled to assistance in implementing the judgment because the Respondent's violence made it difficult to enjoy the fruits of judgment. Ordering re-establishment of beacons was not in contravention of the Land Registration Act, and a similar order was made in the Barnabas Nyagaka Motari case where boundaries were physically marked and vacant possession delivered.

p. 6
04

Whether the Respondent's disobedience amounted to contempt warranting punishment

Holding

The Respondent was found in blatant contempt and the court stated it would proceed to punish him.

Reasoning

The court held contempt is constituted by wilful defiance of or disrespect towards the court. The Respondent, a former judicial officer, violently trespassed into the suit property with his mother, siblings and relatives, destroyed the boundary fence, demolished the Applicant's house and constructed a permanent building, thereby subverting the rule of law in breach of the orders of 7th July 2020. His conduct displayed high-handedness and abuse of the judicial process.

p. 11

Legal principles established

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  • Knowledge of a court order suffices to prove service for purposes of contempt proceedings; personal service is not indispensable.
  • A person affected by a court order of a court of competent jurisdiction is bound to obey it unless and until it is discharged, even if he believes it to be irregular or void.
  • In civil contempt proceedings the applicant must prove (i) the terms of the order, (ii) knowledge of the terms by the respondent, and (iii) failure by the respondent to comply.
  • A court order remains valid and binding until set aside and must be complied with; it is a crime to intentionally disobey a court order.

Court orders

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  1. 1.A registered surveyor shall visit land parcel L.R No. Kericho/Kaptebengwet/450 to show the Applicant the designated beacons
  2. 2.The OCS Kaptengwet police station to provide security to the surveyor and the Applicant during the demarcation exercise
  3. 3.The Respondent Gilbert Kimutai Koech was found in blatant contempt of Court orders and is to be punished for contempt
  4. 4.The Applicant shall have costs of the application
Jurisdiction invoked
Sections 3A of the Civil Procedure Act, Order 40 Rule 3(1) and Order 51 of the Civil Procedure Rules; Section 29 of the Environment and Land Court Act

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, "Koech v Koech & another (Environment & Land Case 22 of 2015) [2024] KEELC 212 (KLR)", Case Analysis (2024). Notice of Motion dated 6th October, 2023 (arising from Gilbert Kimutai Koech vs. Wilson Kipngeno Koech [2018] eKLR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/212/eng@2024-01-25

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