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ELCPartially Allowed· [2025] KEELC 2951 (KLR)

Odhiambo v Mfangano Division Acc & 2 others (Judicial Review 1 of 2022) [2025] KEELC 2951 (KLR)

Environment and Land Court
25 March 2025
1,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled you cannot reopen a contempt case already decided — pay the awarded compensation with interest or face civil jail.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by Nyagaka J, delivered on 25th March 2025, concerned the Notice of Motion dated 29th April 2019 in which the Ex Parte Applicant, Ochieng Odhiambo, sought the committal of the Interested Party, Samuel Okeyo Otindo, to civil jail for disobeying a stay order issued on 27th September 2018 in judicial review proceedings challenging an award of the Applicant's land by the Assistant Land Commissioner. The court traced the history of the application, noting that it had already been canvassed before Ongondo GMA J, who on 25th July 2023 ruled the application merited, convicted the Interested Party of contempt, issued a notice to show cause, ordered compensation of KShs 271,000/= based on a Kenya Forest Service assessment, and awarded costs. Nyagaka J held that the application was therefore fully determined and res judicata, and that the court could not revisit it. The judge also faulted the Interested Party's new advocates for filing a Notice of Appointment instead of a Notice of Change of Advocates under Order 9 Rule 5, struck out submissions filed through them, and criticised the Interested Party's serial procedural manoeuvres and prolonged failure to comply with the notice to show cause. The court directed the contemnor to appear in person on 2nd April 2025 for mitigation and sentencing, to confirm payment of KShs 271,000/= plus interest at 12% per annum, in default of which he is to be committed to civil jail forthwith.

Key legal issues

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01

Res judicata of a contempt application already determined by a previous ruling

Holding

The application dated 29th April 2019 had been fully determined by the ruling of Ongondo J on 25th July 2023, which found the Interested Party liable for contempt, ordered compensation of KShs 271,000/= and awarded costs; that ruling had never been set aside and the matter could not be re-opened.

Reasoning

The court traced the record: the ruling of 25th July 2023 found the application merited, issued a notice to show cause, ordered compensation of KShs 271,000/= per the Kenya Forest Service assessment report dated 25th March 2019, and awarded costs. Since that ruling stood undisturbed, no further hearing of the same motion was possible; only execution of the orders remained.

p. 2
02

Proper procedure for an advocate coming on record for a party already represented

Holding

The Interested Party's new counsel, having filed a Notice of Appointment of Advocates instead of a Notice of Change of Advocates under Order 9 Rule 5, was not properly on record, and documents filed through him (the submissions dated 24th October 2024) were struck out.

Reasoning

The court noted the Interested Party had an advocate before the change. Order 9 Rule 5 of the Civil Procedure Rules requires a Notice of Change of Advocates filed and served on all parties. Filing a fresh Notice of Appointment was irregular and unprocedural, and documents filed by such counsel could not stand on the record.

p. 3
03

Enforcement of contempt orders after prolonged non-compliance

Holding

The contemnor, having failed to comply with the notice to show cause for about four and a half years, is to appear personally on 2nd April 2025 for mitigation and sentencing, and to pay the compensation with interest, failing which he is to be committed to civil jail.

Reasoning

The court observed repeated indulgence of the contemnor through multiple notices to show cause (February to June 2024) despite service, and subsequent procedural manoeuvres, concluding he was bent on continuous disobedience. Since the conviction ruling of 25th July 2023 had never been set aside, its orders had to be given effect forthwith.

p. 3

Legal principles established

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  • Once an application has been fully determined and a ruling issued, the matter is res judicata and the same court cannot revisit or vary its own decision in the same application
  • A new advocate must file and serve a Notice of Change of Advocates under Order 9 Rule 5 to be properly on record for a party who already has an advocate
  • Unexecuted orders of a court that have not been set aside must be given effect despite prolonged non-compliance

Court orders

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  1. 1.The submissions dated 24th October 2024 filed by counsel not properly on record are struck out of the record
  2. 2.The orders of the ruling of 25th July 2023, never set aside, are to be given effect forthwith
  3. 3.The contemnor is directed to present himself in person voluntarily before the court on 2nd April 2025 at 8:45 AM for mitigation and sentencing over his conviction for contempt of court
  4. 4.He is also to confirm that he shall have compensated the Applicant the sum of Kenya Shillings 271,000/= together with interest at court rates (12%) per annum from the date the learned judge found him liable, in default of which he be committed to civil jail forthwith
Jurisdiction invoked
Order 53 Rule 1(4) as read with Order 40 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure 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, "Odhiambo v Mfangano Division Acc & 2 others (Judicial Review 1 of 2022) [2025] KEELC 2951 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2951/eng@2025-03-25

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