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ELCOther· [2024] KEELC 5085 (KLR)

Tapoyo v Tapoyo & another (Environment & Land Case 36 (E032) of 2021) [2024] KEELC 5085 (KLR)

Environment and Land Court
5 July 2024
FNFred Nyagaka
2,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kitale court refused to jail a man for contempt immediately, ruling he must first be heard on the application, but freed him on strict conditions.

What this practically means

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Executive summary

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The Plaintiff filed an application dated 05/04/2024 seeking committal of the 2nd Defendant to civil jail for defying a temporary injunction issued over land parcel L.R. West Pokot/Keringet 'A'/3943, and seeking enforcement by the OCS Kapenguria Police Station. The 2nd Defendant had previously been convicted twice for contempt of court and had served sentences. After delays in effecting arrest, including show-cause notices to the OCS, the Respondent was eventually arrested on 04/07/2024 and presented in court, prompting an oral interlocutory application. The Respondent admitted on oath entering the land and cultivating one acre of beans, attributing his conduct to improper legal advice, and offered to let the crop be harvested under supervision with proceeds deposited in court pending determination of the suit. The Court, applying Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court Act, and authorities including Hadkinson v Hadkinson and Worburn Estate Limited v Margaret Bashford, held that committal was premature and improper since the substantive application dated 05/04/2024 had not been heard and the Respondent was entitled to be heard on it. The Court declined to commit him but ordered his release on a Kshs. 500,000/= bond with strict conditions: the beans to be valued and later harvested and sold under supervision with proceeds deposited in court to await the suit's determination; both parties restrained from the disputed land except as directed; the Respondent to file a Replying Affidavit within seven days; and the application to be heard on 19/09/2024. Both the prayer for committal and the Respondent's request to harvest the beans for his own benefit were refused.

Key legal issues

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01

Whether the Respondent should be committed to jail for contempt

Holding

The prayer for committal was premature and improper; the substantive application dated 05/04/2024 had not been heard and the claim of improper legal advice had to be canvassed at that hearing

Reasoning

The Court traced the legal basis of contempt to Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court Act. It noted the Respondent had been arrested on warrant to facilitate his appearance to oppose the pending application, and that his sworn claim of improper legal advice was a fact requiring a hearing. Committing him without determining the pending application would deny him a chance to be heard.

p. 4
02

Whether to release the Respondent from custody and on what terms

Holding

The Respondent was to be released on bond with conditions allowing the beans to be valued, harvested and sold under supervision with proceeds deposited in Court as a means of purging the contempt

Reasoning

In the interest of justice and fairness, and to give the Respondent a chance to be heard on the pending application, the Court released him on a Kshs. 500,000/= bond. His offer to let the crop be harvested under supervision with proceeds deposited in Court was accepted as an opportunity to purge the contempt, with breach of conditions attracting cancellation of the bond and arrest.

p. 5

Legal principles established

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  • It is a plain and unqualified obligation of every person affected by a court order to obey it unless and until it is discharged, even where the person believes it to be irregular or void
  • Contempt proceedings are quasi-criminal in nature and every procedural step must be scrupulously followed since a person may lose his right to liberty
  • For one to be punished for contempt, he ought to have been found guilty of the disobedience complained of, following a hearing of the substantive application

Court orders

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  1. 1.The 2nd Respondent released on a bond of Kshs. 500,000/= with a suitable surety of a similar sum
  2. 2.The 2nd Respondent, his family, relatives, agents, successors and assigns ordered never to set foot on the disputed portion of land until the suit is heard and determined, and to obey the orders issued on 25/01/2022
  3. 3.The beans growing on the disputed land to be valued at the 2nd Respondent's expense not later than Friday 12/07/2024 by an agricultural officer
  4. 4.Valuation and harvest to be done in the presence of the Applicant or his representative, the 2nd Respondent or his representative, the Area Chief, Assistant Chief and village elder
  5. 5.The beans to grow to harvest under the watch of the Area Chief, Assistant-Chief and Village elder
  6. 6.The crop to be harvested and sold under supervision and the proceeds deposited in Court, to be held until determination of the suit and paid to the party found to be the owner
  7. 7.The 2nd Respondent to file a Replying Affidavit to the application dated 05/04/2024 within seven (7) days
  8. 8.Applicant to have 14 days to submit and serve; the 2nd Respondent 14 days to submit and serve
  9. 9.Fulfilment of the conditions in good faith to be a mitigating factor should the 2nd Respondent be found guilty of contempt; breach to result in cancellation of the bond and arrest
  10. 10.The Applicant and his family, agents and/or assigns restrained from interfering with the crop or the disputed land except as outlined
  11. 11.The Application dated 05/04/2024 to be heard on 19/09/2024

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Environment and Land Court ActSection 29

Cases cited (5)

  • Hadkinson -v- Hadkinson
    (1952) 2 All ER. 567
  • Katsuri Limited Vs Paurchand Depar Shah
    (2016) eKLR
  • Worburn Estate Limited v Margaret Bashford
    [2016] eKLR
  • Ochino & Another v Okombo & others
    [1989] KLR 165
  • Gulabchand Popatlal Shah & Another
    Civil Application No. 39 of 1990
Jurisdiction invoked
Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court 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, "Tapoyo v Tapoyo & another (Environment & Land Case 36 (E032) of 2021) [2024] KEELC 5085 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5085/eng@2024-07-05

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