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ELCDismissedNotice of Motion dated 26th March 2019· [2024] KEELC 1670 (KLR)

Green Square Limited & another v Koech & 5 others (Environment & Land Case 66 of 2014) [2024] KEELC 1670 (KLR)

Environment and Land Court
4 April 2024
4,909 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a contempt application because the applicant could not prove the respondents actually knew about the court orders they allegedly disobeyed.

What this practically means

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Executive summary

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By a Notice of Motion dated 26th March 2019, the 1st Defendant, Davy Kiprotich Koech, sought an order that six Respondents/Contemnors show cause why they should not be committed to civil jail for disobeying orders issued on 29th October 2015 following a site visit, in which the court stopped all works on a disputed access road reserve and directed the OCS Kericho to enforce the order. The application was opposed by the plaintiffs (contemnors) who denied service of the orders, and by the 5th and 6th Respondents, county government officials, who filed a preliminary objection and an application to strike out the motion for joining strangers to the suit without leave. The court set out the ingredients of civil contempt: proof of the terms of the order, knowledge of those terms, and failure to comply. Examining the proceedings of 29th October 2015, the court found that save for the plaintiffs' counsel, the contemnors were neither parties to the suit nor present at the site, and there was no evidence of service of or knowledge of the orders. The court further noted that the suit property, Kericho Municipality Block 4/2, had been attached, subdivided and sold by the Ethics and Anti-Corruption Commission pursuant to a partial consent judgment of Ksh. 200,000,000, and the Court of Appeal had dismissed the applicant's bid to halt execution. Applying principles of abuse of process, the court found the application made in bad faith, seeking a determination on a non-existent cause of action, and dismissed the Notice of Motion dated 26th March 2019 with costs.

Key legal issues

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01

Whether the Respondents/Contemnors were in contempt of the orders of 29th October 2015

Holding

No contempt was established: apart from the plaintiffs' counsel, the contemnors were neither parties to the proceedings nor present at the site, and there was no evidence of service of or knowledge of the orders

Reasoning

The court reviewed the proceedings of 29th October 2015 and found that the contemnors were not parties to the suit at that date and only sought joinder after being cited for contempt. Nothing was exhibited to show service of or knowledge of the orders. Knowledge being an essential ingredient of civil contempt, the contempt application could not succeed.

p. 8
02

Whether the contempt application was an abuse of the court process

Holding

Yes - the application was made in bad faith, seeking a determination on a non-existent cause of action, the suit property having been attached, subdivided and sold by the EACC in separate proceedings

Reasoning

The suit property, Kericho Municipality Block 4/2, had been attached, subdivided and sold pursuant to a partial consent judgment of Ksh. 200,000,000 in ACEC proceedings, and the Court of Appeal had dismissed the applicant's attempt to halt execution. The applicant, aware of this, sought to mislead the court into determining a non-existent cause of action, occasioning miscarriage of justice.

p. 9

Legal principles established

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  • To succeed in civil contempt proceedings an applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure by the respondent to comply
  • A court order is binding on the party against whom it is addressed and remains valid and to be complied with until set aside
  • The power to commit a person to jail for contempt must be exercised with utmost care and only as a last resort, requiring proof of wilful conduct

Court orders

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  1. 1.The Notice of Motion dated 26th March 2019 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1) and 162(2)(b)
  • Constitution of KenyaArticles 28, 40, 43
  • Judicature Act (Cap. 8)Section 5
  • Civil Procedure (Amendment No.2) Rules, 2012 of EnglandPart 81 (Applications and Proceedings in Relation to Contempt of Court)
  • Environment and Land Court Act No. 19 of 2011Sections 14 and 29
  • Civil Procedure Act (Cap. 21)Sections 3A and 63
  • Civil Procedure RulesOrder 51 Rule 14(1)(c); Order 1 Rule 18

Cases cited (19)

  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Basil Criticos vs. Attorney General & 8 others & 4 others
    [2012] eKLR
  • Kenya Tea Growers Association vs. Francis Atwoli & 5 others
    [2012] eKLR
  • Godie Neeru vs. Republic, Criminal Appeal No. 200 of 1993
  • Image Apparels Ltd vs. Freight In Time Limited
    [2008] eKLR
  • Johnson vs. Grant
    1923 SC 789
  • Trust Bank Ltd (in liquidation) vs. Shanzu Villas Ltd & 3 others
    [2004] eKLR
  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR
  • Regine Butt vs. Haroon Butt & another
    [2016] eKLR
  • Republic v Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • Kenya Anti-Corruption Commission v Davy Kiprotich Koech & another
    [2018] eKLR
  • Ethics & Anti-Corruption Commission v DKK & 2 others
    [2020] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others
    (2009) eKLR
  • Beinosi v Wiley
    1973 SA 721 [SCA]
  • Dr. Davy Kiprotich Koech vs. Kenya Anti-Corruption Commission & another, Civil Application No. 92 of 2019
  • Davy Kiprotich Koech vs. EACC & Another, ACEC Petition No. 5 of 2020
  • EACC vs. Davy Kiprotich Koech & Another, ACEC No. 18 of 2016
  • Davy Kiprotich Koech vs Republic, Revision No. E016 of 2021
  • KACC vs Dr. Davy Kiprotich Koech & Another, HCCA No. 316 of 2010
Jurisdiction invoked
Articles 162(1) and 162(2)(b) of the Constitution; Section 5 of the Judicature Act (Cap. 8); Section 14 of the Environment and Land Court Act No. 19 of 2011; Sections 3A and 63 of the Civil Procedure Act (Cap. 21)

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, "Green Square Limited & another v Koech & 5 others (Environment & Land Case 66 of 2014) [2024] KEELC 1670 (KLR)", Case Analysis (2024). Notice of Motion dated 26th March 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1670/eng@2024-04-04

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