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ELCDismissedNot stated in judgment (Machakos ELC; application dated 14th November, 2023)· [2024] KEELC 6033 (KLR)

Ndeto & another v Ndeto (The Administrator of the Estate of Samson Ndeto Kimomo) & 2 others (Environment & Land Case E083 of 2021) [2024] KEELC 6033 (KLR)

Environment and Land Court
23 September 2024
COChristine Ochieng
1,902 words in judgment
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The bottom line

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The Machakos Environment and Land Court refused to jail family members over an unimplemented land consent order, finding the order itself was too contradictory to enforce through contempt.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Plaintiffs' Notice of Motion dated 14th November 2023, brought under Order 39 Rules 2A(2) and 4, Order 50 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking committal of the 1st and 2nd Respondents (administrators of the Estate of Samson Ndeto Kimomo) to civil jail for up to six months for wilfully disobeying a consent order dated 4th November 2022, adopted as judgment on 7th November 2022, which required transfers and excision of parcels from the estate land. The Applicants, beneficiaries each entitled to ten acres, alleged the Respondents were personally served but failed to effect transfers and had sold portions of the estate. The Respondents denied the sale, relied on a Notice of Withdrawal filed by the 2nd Plaintiff, and contended they were barred by the court's preservation orders of 13th June 2022. The sole issue framed was whether the Applicants were entitled to the orders sought. The court set out the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and the statutory framework in Section 29 of the Environment and Land Court Act and Section 4(1)(a) of the Contempt of Court Act. It found the consent itself internally inconsistent: it required transfer of ten acres to Geoffrey Alala Ochieng while preserving the 13th June 2022 orders until implementation, creating an impossibility and thus ambiguity. Noting that the 1st and 2nd Plaintiffs already held Certificates of Title dated 17th February 2022 for their parcels, and that only the ten-acre transfer remained outstanding, the court held the Applicants had not proved contempt to the required criminal standard. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the 1st and 2nd Respondents wilfully disobeyed the consent judgment of 4th November, 2022

Holding

No contempt established. The Respondents were barred by a preservation order issued on 13th June, 2022, which the consent itself said would only be vacated upon implementation, making compliance impossible and rendering the consent ambiguous

Reasoning

The court noted the consent order required the Respondents to excise and transfer 10 acres to Geoffrey Alala Ochieng, yet paragraph (d) of the same consent kept the 13th June 2022 preservation orders in force until implementation. This internal contradiction meant the Respondents could not effect transfer without breaching the preservation order. The court also found the 1st and 2nd Plaintiffs had already received their parcels and were not acting in unity, so the Applicants failed to prove contempt to the required criminal standard.

p. 4
02

Whether the Applicants discharged the burden of proving contempt to the applicable standard

Holding

They did not

Reasoning

Applying North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, the court required proof of clear terms, notice, breach and deliberate conduct to a standard higher than ordinary civil cases. Given the ambiguity in the consent and the subsisting preservation orders, the court found the elements unmade. The court also observed that two of the three transfer obligations under the consent had been satisfied by titles issued in February 2022, predating the consent itself.

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order binding on the defendant; knowledge or proper notice; breach; and deliberate conduct, proved to a standard higher than ordinary civil cases
  • Where a subsisting court preservation order bars a party from the very act a consent order requires, the party cannot be held in contempt for non-compliance
  • Contempt proceedings are criminal in nature and the burden of proof rests on the Applicant

Court orders

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  1. 1.The Notice of Motion Application dated 14th November, 2023 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 39 Rules 2A(2) and 4; Order 50 Rule 1
  • Environment and Land Court ActSection 29
  • Contempt of Court ActSection 4(1)(a)

Cases cited (1)

  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Sections 3A and Orders 39 Rules 2A(2) and 4 and Order 50 Rule 1 of the Civil Procedure Act and Rules

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, "Ndeto & another v Ndeto (The Administrator of the Estate of Samson Ndeto Kimomo) & 2 others (Environment & Land Case E083 of 2021) [2024] KEELC 6033 (KLR)", Case Analysis (2024). Not stated in judgment (Machakos ELC; application dated 14th November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6033/eng@2024-09-23

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