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ELCPartially AllowedEnvironment & Land Case 1154 of 2015· [2025] KEELC 1403 (KLR)

Njeru v Olendo (Environment & Land Case 1154 of 2015) [2025] KEELC 1403 (KLR)

Environment and Land Court
20 March 2025
2,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court ruled you cannot be jailed for contempt of a judgment that merely dismisses claims and orders nobody to do anything.

What this practically means

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Executive summary

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The Defendant, Joseph Okwaro Olendo, filed a Notice of Motion dated 13th March 2024 seeking adoption of a consent between his outgoing and incoming advocates under Order 9 Rule 9 of the Civil Procedure Rules, and an order committing the Plaintiff, Lucy Wanjiru Njeru, to civil jail for contempt of the judgment delivered on 26th January 2023, which declared the parties lawful owners of Plots 0487 and 0485 respectively and dismissed the Plaintiff's encroachment claim. The Plaintiff opposed, asserting that the judgment declared her owner of Plot 0487, that the beacon identification exercise and adopted report showed the Defendant occupying her land, and that the eviction notice was issued under Section 152E of the Land Act; she also contended the plots fell within the Kirima estate and that the court had become functus officio. The court found the consent unopposed and adopted it, confirming Agutu & Company Advocates as properly on record. On contempt, the court held the judgment contained only negative orders - a finding that no encroachment was proved - which did not require the Plaintiff to do or refrain from doing anything, so no contempt arose. The court further held that the beacon identification exercise and its adopted report did not alter the judgment, and that the Section 152E summary eviction procedure was unsuitable given the disputed trespass, the notice also falling short of the statutory three months. The contempt prayer was disallowed with each party bearing their own costs.

Key legal issues

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01

Adoption of a consent under Order 9 Rule 9 for change of advocates after judgment

Holding

The consent filed on 18th March 2024 between the outgoing and incoming advocates was unopposed and compliant with Order 9 Rule 9, and the court adopted it as an order of the court

Reasoning

Order 9 Rule 9 protects advocates from mischievous clients who sack advocates after judgment. The firm of Agutu & Company Advocates filed a consent with the Defendant's previous advocates on 18th March 2024. The consent was not opposed, so the court adopted it and confirmed the incoming firm was properly on record for the Defendant.

p. 3
02

Whether the Plaintiff's eviction notice dated 19th February 2024 constituted contempt of the judgment of 26th January 2023

Holding

No contempt was established; the judgment contained negative orders finding no proven encroachment, and the court made no substantive finding on the relative location of the plots

Reasoning

The judgment declared the Plaintiff owner of Plot 0487 and the Defendant owner of Plot 0485 but dismissed the encroachment claim. Negative orders cannot bind the Plaintiff to any act or omission. The beacon identification exercise was not intended to prove encroachment, and its adoption did not alter the judgment. The court was therefore not persuaded the Defendant established contempt.

p. 5
03

Reliance on Section 152E of the Land Act for eviction

Holding

The eviction notice could not rest on Section 152E because it issued a 7-day notice rather than the statutory three months, and the dispute over trespass makes the summary procedure unsuitable

Reasoning

The letter of 19th February 2024 sought eviction on the strength of the judgment, not Section 152E as claimed. In any event, Section 152E requires not less than three months' notice. Since there is a dispute as to whether the Defendant trespassed, the summary procedure under Sections 152E and 152F is unsuitable and a formal suit would be advisable.

p. 6

Legal principles established

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  • Contempt cannot attach to negative orders (declaratory findings) that require no party to do or refrain from doing anything
  • The elements of contempt are: clear and unambiguous terms of the order, knowledge or notice of the terms, breach of the terms, and deliberate conduct
  • Where ownership or occupation is disputed, the summary eviction procedure under Sections 152E and 152F of the Land Act is unsuitable and a formal suit is advisable
  • Section 152E of the Land Act requires not less than three months' notice of eviction from private land
  • A post-judgment beacon identification exercise directed by the court does not alter or reopen the judgment; a party aggrieved must appeal

Court orders

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  1. 1.Adopted the consent executed between the firm of Kioko, Munyithya, Ngugi & Company Advocates and Agutu & Company Advocates under Order 9 Rule 9 of the Civil Procedure Rules as an order of the Court
  2. 2.Disallowed the prayer to find the Plaintiff in contempt
  3. 3.Each party to bear his/her own costs

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules 2010Order 9 Rule 9(b)
  • Civil Procedure Rules 2010Order 40 Rule 1
  • Civil Procedure Rules 2010Order 51 Rules 1, 3 and 4
  • Land ActSection 152E
  • Land ActSection 152F

Cases cited (6)

  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Sheila Cassatt Issenberg & another vs Antony Machatha Kinyanjui
    [2021] KEHC 5692 (KLR)
  • Cecil Miller vs Jackson Njeru & Another
    [2017] eKLR
  • Julius L Marten vs Caleb Arap Rotich
    [2021] KEELC 195 (KLR)
  • James Mathura Makewa vs Nzari Nguli
    (2021) eKLR
  • James Mathuva Makewa vs Nzavi Ngului
    [2021] KEELC 4678 (KLR)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 9 Rule 9(b), Order 40 Rule 1 and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules 2010

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, "Njeru v Olendo (Environment & Land Case 1154 of 2015) [2025] KEELC 1403 (KLR)", Case Analysis (2025). Environment & Land Case 1154 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1403/eng@2025-03-20

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