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ELCAllowedNot stated in judgment· [2024] KEELC 3381 (KLR)

Shah & another v Kigotho & another; Munge (Interested Party) (Environment and Land Case Civil Suit 1167 of 2013) [2024] KEELC 3381 (KLR)

Environment and Land Court
24 April 2024
884 words in judgment
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The bottom line

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The Environment and Land Court found land defendants and company directors in contempt for ignoring a 2021 judgment and ordered them to vacate and pay Kshs 3 million.

What this practically means

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Executive summary

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By a Notice of Motion dated 16.10.2023, the plaintiff sought to have the defendants, including the directors of the 2nd defendant (Godfrey Ngatia and Thomas Waweru), cited for contempt of the judgment entered on 11.11.2021, under which the defendants were declared trespassers on parcel LR 9104/205, ordered to vacate the suit land and to pay damages of Kshs 3,000,000. The plaintiff complained that the defendants had not vacated the property and the gate remained locked. The 1st defendant opposed, asserting he had never been in occupation and that no orders were made against him; the 2nd defendant did not participate despite service. Relying on Section 5 of the Judicature Act and the authorities in Fred Matiangi v Miguna Miguna and Refrigeration and Kitchen Utensils Ltd v Gulabch and Popatlal Shah (as cited in Woburn Estate Limited v Margaret Bashforth), the court held that court orders must be obeyed. It found the 1st defendant's claim of non-occupation inconsistent with his trial evidence, and, there being no evidence of when he left the premises, held the defendants and the directors of the 2nd defendant in contempt. It ordered the defendants to vacate the suit land and reaffirmed the Kshs 3,000,000 damages award already contained in the judgment. The application was allowed in terms of prayers a) to e), with costs to the plaintiff.

Key legal issues

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01

Whether the defendants and the directors of the 2nd defendant are in contempt of the judgment of 11.11.2021

Holding

They are in contempt; the 1st defendant's claim of non-occupation contradicted his testimony at trial, and the 2nd defendant did not participate despite service.

Reasoning

The court found the plaintiff had not enjoyed the fruits of the judgment, the gate remained locked, and the defendants had not vacated or paid damages. The 1st defendant's averment that he never occupied the premises was at variance with his trial evidence that he entered the premises legally, and no evidence showed when he left. The 2nd defendant and its directors tendered no evidence despite being served.

p. 2
02

Whether an order for vacation of the suit premises and payment of Kshs 3,000,000 should issue

Holding

Yes; both were already provided for in the judgment (paragraphs c), d) and e)), and the court merely reiterated the orders.

Reasoning

The court found defendants had been held to be trespassers in the earlier judgment, so it was unnecessary to belabour the point; the court only gave the appropriate order to vacate. The damages award of Kshs 3,000,000 already existed at clause e) of the judgment and needed no restatement beyond enforcement.

p. 3

Legal principles established

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  • Court orders must be obeyed; a party who knows of an order cannot be permitted to disobey it, whether the order is null or valid, regular or irregular.
  • The law governing contempt of court proceedings in Kenya is the English law applicable in England at the time the alleged contempt is committed (Section 5, Judicature Act).

Court orders

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  1. 1.The application dated 16.10.2023 is allowed in terms of prayers numbers a) to e)
  2. 2.The defendants are condemned to pay costs of the application

Authorities

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Legislation

  • Judicature ActSection 5

Cases cited (4)

  • Fred Matiangi the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
  • Sophinah Kalondu Mbiti v Arun Mahendra Adalja & 3 others
    [2021] eKLR
  • Refrigeration and Kitchen Utensils Ltd v Gulabch and Popatlal Shah & another, Civil Application No 39 of 1990
    Civil Application No 39 of 1990
  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
Jurisdiction invoked
Enforcement of the court's judgment of 11.11.2021; contempt proceedings under Section 5 of the Judicature 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, "Shah & another v Kigotho & another; Munge (Interested Party) (Environment and Land Case Civil Suit 1167 of 2013) [2024] KEELC 3381 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3381/eng@2024-04-24

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