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ELCDismissedNot stated in judgment (Application dated 3rd July 2023)· [2024] KEELC 590 (KLR)

Abdirahman & another v Kaburu & another (Environment and Land Case 48 of 2014) [2024] KEELC 590 (KLR)

Environment and Land Court
8 February 2024
EME. K. Makori
1,781 words in judgment
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The bottom line

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A Kenyan court refused to punish land occupants for contempt because the winners never first tried to enforce their judgment the normal way.

What this practically means

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Executive summary

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The applicants, who had obtained a judgment and permanent injunction from the Environment and Land Court (Angote J) restraining the 1st respondent from interfering with land parcel Gede/Mijomboni/888 - a judgment affirmed by the Court of Appeal in Civil Appeal No. 95 of 2017 - moved the court by application dated 3rd July 2023 seeking to have the respondents cited for contempt, alleging that the 1st respondent had directed the 2nd respondent to invade, trespass on and farm the suit land in defiance of the orders. The applicants relied on Order 40 Rule 3 of the Civil Procedure Rules and the contempt elements set out in Samuel M. N. Mweru & others v National Land Commission. The 2nd respondent opposed, arguing he was not a party to the judgment, was joined without leave of the court, was not accorded a hearing under Article 50, and that the 1st applicant lacked authority to swear documents on the 2nd applicant's behalf. The court (E. K. Makori J) framed two issues: whether grounds for contempt were established, and costs. Applying the Mweru elements - terms of the order, knowledge, and breach, with wilfulness inferred but rebuttable - the court found the applicants had not proved the elements: the specific dates, authority, and the 2nd respondent's awareness of the orders were not shown, and the applicants admitted they had not taken out execution proceedings. The court dismissed the application with costs and directed the applicants to execute the judgment by registering the suit property in their names and evicting any illegal occupants, holding that the court could be moved if hardship arose during execution.

Key legal issues

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01

Whether contempt was proved against the respondents

Holding

No; the applicants failed to prove the elements of contempt, particularly wilful and deliberate breach, especially against the 2nd respondent who was not a party to the original proceedings

Reasoning

The court restated the elements from Samuel M. N. Mweru: terms of the order, knowledge, and breach, with wilfulness inferred but rebuttable. It noted the 2nd respondent was joined without leave, the dates and circumstances of his entry were not shown, and his awareness of the orders was not established. The applicants also admitted they had not attempted execution, the proper route to enforce the judgment.

p. 4
02

Proper remedy for enforcing the subsisting judgment

Holding

The applicants should execute the judgment rather than pursue contempt proceedings

Reasoning

The court held that the applicants had not taken out execution proceedings, and that executing the judgment by registration of the suit property in their names and evicting any illegal occupants would reveal the 2nd respondent's role, if any, and avoid relitigating the matter afresh.

p. 4

Legal principles established

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  • To succeed in civil contempt, the applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure to comply; wilfulness and bad faith are then inferred unless rebutted
  • Contempt of court is quasi-criminal in nature and a high standard of proof applies where committal is sought
  • Casual, accidental or unintentional disobedience does not render a person liable to punishment for contempt

Court orders

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  1. 1.The application dated 3rd July 2023 is dismissed with costs
  2. 2.The applicants to execute the judgment of the Court by having the suit property registered in their names and evicting any person illegally standing or residing on the suit land
  3. 3.If hardship is encountered in execution, the court can be moved

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3
  • Constitution of Kenya, 2010Article 50

Cases cited (3)

  • Samuel M. N. Mweru & others v National Land Commission & 2 others
    [2020] eKLR
  • Rubina Ahmed and 3 Others v Guardian Bank (Sued in its capacity as a successor in Title to the First National Finance Bank Ltd
    [2019] eKLR
  • Savala & Another v Ndanyi
    [2021] eKLR
Jurisdiction invoked
Order 40 Rule 3 of the Civil Procedure Rules (powers on disobedience of court orders)

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, "Abdirahman & another v Kaburu & another (Environment and Land Case 48 of 2014) [2024] KEELC 590 (KLR)", Case Analysis (2024). Not stated in judgment (Application dated 3rd July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/590/eng@2024-02-08

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