Lukio & 2 others (Suing as the Registered Trustees of the Luo Council of Elders) v County Government of Kisumu & another; Nyongo & 3 others (Alleged Contemnors) (Environment and Land Case Civil Suit E029 of 2023) [2024] KEELC 5335 (KLR)
The bottom line
#Kenya's Environment and Land Court found Kisumu's City Manager personally in contempt for defying a court order protecting property from demolition and eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the court order of 15th December 2023 was breached
The 1st and 2nd Defendants breached the order by taking over the suit property, demolishing structures and evicting tenants.
The court was satisfied on the affidavit of service that the order and the application dated 14th December 2023 were served on the 1st and 2nd Defendants on 15th December 2023, which service was not denied. The 4th alleged contemnor, as City Manager and an officer of the 1st Defendant, led an eviction and demolition team on 19th December 2023, evicted tenants, demolished structures and the Defendants took over control of the property before handing it over to intended interested parties - all acts squarely restrained by the order.
Whether knowledge of the order without personal service on the alleged contemnors suffices
Knowledge supersedes personal service; the contempt was established against the officer bearing primary responsibility.
Relying on Shimmers Plaza and Basil Criticos, the court noted Kenyan jurisprudence has moved from strict personal service to knowledge of the order. The 4th alleged contemnor's office was itself sued as the 2nd Defendant and served with the order; he never denied knowledge and personally led the eviction and demolition. The other alleged contemnors' degree of responsibility and proximity to the order did not justify personal liability.
Whether the contemnor could rely on the alleged incompetence of the underlying suit (locus standi)
No; an order must be obeyed until set aside even if believed to have been issued in an incompetent suit.
The 4th alleged contemnor had contended the Plaintiffs lacked locus standi and the suit was defective. The court held that the obligation to obey a court order subsists unless and until the order is discharged, applying Wildlife Lodges v County Council of Narok; self-help assessment of an order's validity is unlawful.
Legal principles established
#- Every person against whom a court order is made must obey it unless and until it is discharged; disobedience renders the person liable to be punished for contempt.
- The standard of proof in contempt proceedings is higher than the balance of probabilities but almost, though not exactly, beyond reasonable doubt.
- Knowledge of a court order suffices for contempt purposes even absent proof of personal service.
- Parties cannot choose which court orders to obey; an order alleged to be a nullity must be challenged in court, not defied.
- Where a County Government disobeys a court order, the officer(s) bearing the weight of responsibility for compliance must bear the punishment.
Court orders
#- 1.A finding that the 4th alleged contemnor, Mr. Abala Wanga, the City Manager, County Government of Kisumu, is in contempt of the court order made on 15th December 2023
- 2.The contemnor to appear before the court on a date to be fixed to address the court in mitigation before sentence is passed
- 3.Possession and control of the suit property to be as it was on 15th December 2023 pending the hearing of the Plaintiffs' application dated 14th December 2023
- 4.Plaintiffs awarded costs of the Notice of Motion dated 18th January 2024, to be paid by the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property Kisumu Municipality/Block 5/25, exercising contempt-of-court powers over orders issued by it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lukio & 2 others (Suing as the Registered Trustees of the Luo Council of Elders) v County Government of Kisumu & another; Nyongo & 3 others (Alleged Contemnors) (Environment and Land Case Civil Suit E029 of 2023) [2024] KEELC 5335 (KLR)", Case Analysis (2024). Not stated in the excerpt (original suit; Notice of Motion dated 18th January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5335/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.