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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 3991 (KLR)

Nyawira & another v Archer Dramond Morgan Ltd (Environment & Land Case 110 of 2009) [2024] KEELC 3991 (KLR)

Environment and Land Court
29 April 2024
ANA. Nyukuri
2,834 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a police chief in contempt for delaying an eviction pending security committee approval, confirming no committee can block execution of verified court orders.

What this practically means

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Executive summary

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The plaintiffs, having obtained judgment, a decree and warrants of eviction dated 24th November 2021 against the defendant, Archer Dramond Morgan Limited, over Unit No. 8 of Phase 1, Hillcrest Park on L.R. No. 27317, moved the court by Notice of Motion dated 27th October 2022 seeking that Chief Inspector Ramadhan Mjomba, OCS Athi River Police Station, be cited for contempt for failing to assist the court bailiff in executing the warrants. The defendant opposed the application, arguing the orders were ambiguous and that only a court bailiff or auctioneer can execute civil warrants, the police role being limited to maintaining law and order. The respondent contended that no orders were issued against him personally, that he was never personally served, and that police assistance awaited approval of the sub-county security committee, citing police standing orders and internal directives. The court framed a single issue: whether the respondent was in contempt. Relying on section 5 of the Judicature Act and the Econet Wireless line of authority, it held that contempt requires an unambiguous order, awareness and willing breach. It found the respondent had verified the orders and admitted awareness, yet failed to provide security, and that neither the police nor any security committee has power to approve execution of a verified court order. The application was allowed; the respondent was found in contempt and ordered to appear for mitigation and sentence on 18th July 2024.

Key legal issues

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01

Whether the OCS was in contempt of the orders of 24th November 2021 requiring him to offer security during eviction

Holding

Yes; having verified the orders and acknowledged receipt, his failure to offer security despite awaiting security committee approval constituted contempt

Reasoning

The warrants of 24th November 2021 clearly required the respondent to assist the court bailiff in the eviction. He wrote to verify the order and admitted awareness of it, yet did not provide security, citing the sub-county security committee's pending approval. The court held that no committee has power to approve execution of a verified court order, and that subjecting execution to such approval would render access to justice a mirage for the indigent.

p. 5
02

Whether police assistance in executing eviction orders requires prior approval of the sub-county security committee

Holding

No; police may verify authenticity and conduct due diligence but cannot condition execution on committee approval

Reasoning

The court examined the Deputy Inspector General's letter of 16th March 2020 relied on by the respondent and found it only required verification of eviction orders by the police legal officer, not committee approval. The court accepted that police may verify authenticity of orders, but held that requiring committee approval before executing a court order is contrary to law and would undermine access to justice.

p. 5

Legal principles established

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  • Neither the police nor the county security committee or any other committee has power to approve the execution of a court order once it has been verified to be authentic; a verified order must be executed unless stayed or set aside
  • To prove contempt an applicant must show an unambiguous order, the respondent's awareness of it, and a willing breach

Court orders

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  1. 1.The application dated 27th October 2022 is allowed
  2. 2.Chief Inspector Ramadhan Mjomba is found to be in contempt of the orders of 24th November 2021
  3. 3.He is ordered to appear before court on 18th July 2024 for mitigation and sentence

Authorities

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Legislation

  • Judicature ActSection 5
  • Constitution of KenyaArticles 243 and 244
  • Rules of the Supreme Court of EnglandOrder 52 Rule 3
  • Police Standing OrdersPart IV section 41
  • Advocates’ Practice RulesRule 9

Cases cited (6)

  • B v Attorney General
    [2004] 1 KLR 431
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    Petition No. 23 of 2013
  • Marianne Jebet Kitany v Franklin Mithika Linturi
    ELC Case No. E3993 of 2021 (Nairobi)
  • Econet Wireless Kenya Limited v Minister for Information and Communication Authority of Kenya
    [2005] eKLR
  • T.N Gadavarman Thiru Mulpad v Ashok Khot & another
    [2005] 5 SCC
  • Katsuri Ltd v Kapurchand Depor Shar
    [2016] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (power to punish for contempt of court)

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, "Nyawira & another v Archer Dramond Morgan Ltd (Environment & Land Case 110 of 2009) [2024] KEELC 3991 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3991/eng@2024-04-29

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