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ELCDismissed· [2024] KEELC 897 (KLR)

Kamano (Suing as the Lawful Attorney of George Kamano) v Kamano (Environment and Land Case E017 of 2023) [2024] KEELC 897 (KLR)

Environment and Land Court
15 February 2024
MMM.D. Mwangi
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to punish a man for building on disputed land because the original order didn't clearly ban construction, and no evidence showed work was still happening.

What this practically means

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Executive summary

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The Plaintiff, Sophia Mary Ngonyo Kamano, filed a Notice of Motion dated 29th August 2023 seeking to have the Defendant, Joseph Kamoyo Kamano, cited for contempt of the status quo orders issued on 26th July 2023 in respect of plot No. Kangemi/Dagoretti/1030. She sought his detention for six months, sequestration of his properties, and preservation of the property pending further orders. The Defendant opposed the application through grounds of opposition and a replying affidavit, contending that he was never personally served with the order, that he continued construction on his rightful portion based on his architect's advice regarding impending El Nino rains, and that the application was an abuse of process given the Plaintiff's own failure to cooperate in court-annexed mediation. The court framed two issues: whether the Defendant should be cited for contempt, and who should bear costs. Applying the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and the knowledge-over-personal-service doctrine from Shimmers Plaza Ltd v National Bank of Kenya Ltd, the court noted that the Defendant's advocates were present when the order was made. However, the 26th July status quo order did not expressly bar construction; the express prohibition was only clarified on 28th September 2023. Further, no evidence of ongoing construction was placed before the court. Mindful of the ongoing mediation between family members, the court disallowed the application with no orders as to costs, while warning the Defendant against any future disobedience of the clarified orders.

Key legal issues

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01

Whether the Defendant/Respondent should be cited for contempt of the status quo order issued on 26th July 2023

Holding

The application for contempt was disallowed because the original status quo order did not expressly bar construction until clarified on 28th September 2023, there was no evidence of ongoing construction, and the court was reluctant to cite the Defendant while mediation was ongoing between family members

Reasoning

The court traced the elements of civil contempt, including knowledge of the order, which can be imputed through the Defendant's advocates who were present when the order was made. However, the 26th July 2023 status quo order did not expressly prohibit construction; the prohibition was only clarified on 28th September 2023. No evidence of ongoing construction was adduced. Given pending mediation between family members, the court declined to cite the Defendant but warned him against future disobedience.

p. 5

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order, knowledge or notice, breach, and deliberateness, proved to a standard higher than in ordinary civil cases
  • Knowledge of a court order suffices to prove service and dispenses with the requirement of personal service in contempt proceedings
  • Status quo means the present situation, the existing state of things as at the time the order is made, not past or future occurrences

Court orders

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  1. 1.The Plaintiff/Applicant's application for contempt was disallowed
  2. 2.No orders as to costs
  3. 3.The Defendant/Respondent was warned against any disobedience of the Court's orders as clarified on 28th September 2023

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29
  • Civil Procedure Rules, 2010Order 40 Rule 3
  • Practice Directions on Proceedings in the Environment and Land CourtsRule 28(K)

Cases cited (3)

  • North Tetu Farmers Co. Ltd vs. Joseph Nderitu Wanjohi
    (2016) eKLR
  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos vs Attorney General and 8 Others
    [2012] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act; Order 40 Rule 3 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamano (Suing as the Lawful Attorney of George Kamano) v Kamano (Environment and Land Case E017 of 2023) [2024] KEELC 897 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/897/eng@2024-02-15

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