[2017] KEELC 2529 (KLR)
The court found that the order of 14/7/2015, which the applicant alleged was disobeyed, merely dismissed an application by the 2nd defendant and did not require the defendants to do or refrain from doing anything. As such, there was no operative order capable of being disobeyed, and the application for contempt was...
Source-derived case information.
- Citation
- [2017] KEELC 2529 (KLR)
- Parties
- Plaintiff: David Sikuku Kones; Defendant: Bashir Towet Chemaswet; Defendant: Vincent Wasama Kirunyi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 125 of 2014
- Procedural Posture
- Land Case / Ruling on Contempt Application
- Outcome
- application dismissed with costs
- Judges
- FM Njoroge
- Legal Topics
- Contempt of Court, Enforcement of Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Sikuku Kones
Plaintiff
Bashir Towet Chemaswet
Defendant
Vincent Wasama Kirunyi
Defendant
Procedural Posture
Land Case / Ruling on Contempt Application
Legal Issues
- 1 Whether the 2nd defendant disobeyed a valid court order issued on 14/7/2016.
- 2 Whether the order allegedly breached was capable of being disobeyed.
Ratio Decidendi
The court found that the order of 14/7/2015, which the applicant alleged was disobeyed, merely dismissed an application by the 2nd defendant and did not require the defendants to do or refrain from doing anything. As such, there was no operative order capable of being disobeyed, and the application for contempt was without merit. The applicant failed to demonstrate how the order could have been breached without reference to an earlier order, which was not the subject of the contempt application. The court therefore dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 6th December, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 125 OF 2014
DAVID SIKUKU KONES........................................PLAINTIFF
VERSUS
BASHIR TOWET CHEMASWET...............1ST DEFENDANT
VINCENT WASAMA KIRUNYI..................2ND DEFENDANT
R U L I N G
1. The principal prayer sought by the plaintiff/applicant is the application dated 6/12/2016 is that the 2nd defendant, Vincent Wasama Kirunyi be committed to civil jail for a period of up to 6 months for disobeying the court orders issued in this suit on 14/7/2016.
2. The order that is alleged to have been breached is attached to the supporting affidavit. It reads as follows:-
“It is hereby ordered as follows:-
(1) That the application dated 3rd March, 2015 seeking to set aside the orders issued on 21st day of January, 2015 is hereby dismissed”.
3. I have considered this application and the seriousness of the order sought. One question that arises is whether there is any order emanating from the proceedings of 14/7/2015 that is capable of being disobeyed by any party. The order given on the 14th July, 2015 merely dismissed the application dated 3rd March, 2015.
4. If the effect of the said order is that another order issued earlier on in these proceedings came into force again after a period of stay, then in this court’s consideration, that earlier order is the order that matters in these proceedings.
5. It is noteworthy that the applicant himself is at pains to explain how the orders of 14/7/2015 could have been disobeyed by the respondent, and it appears that he cannot do so easily without alluding to its connection to an earlier order. This is seen from paragraph 5 of the affidavit supporting the application. It states as follows:-
“5 That I am informed by my advocate on record, information I believe to be true that the orders of 21/1/2015 which had been stayed by the 2nd respondent’s application became as from 13th July, 2015 operation”.(sic).
6. At paragraph 7 of the same affidavit the deponent states:-
“7 That I am informed by my advocates on record information I verily believe to be true that the orders of 14/7/2015 were duly served on both defendants on 9/11/2016. Annexed and marked “DSK-1” is a true copy of the affidavit by Archibald Nyukuri Wekesa dated this 11th day of November, 2016”. (sic)
7. The order served did not require the defendants to do or to abstain from doing anything it merely dismissed an application filed by the 2nd defendant. There is no disobedience that may arise out of that order. For that reason the application dated 6th December, 2016 is without merit and it is hereby dismissed with costs.
Signed, dated and delivered at Kitale on this 30th day of May, 2017.
MWANGI NJOROGE
JUDGE
30/5/2017
Before – Mwangi Njoroge Judge
Court Assistant – Isabellah
N/A for the parties
Ruling read in open court.
MWANGI NJOROGE
JUDGE
30/05/2017