[2016] KEELC 1034 (KLR)
The court found that a valid court order restraining the Respondent from further construction on the disputed land was issued and duly served, including a penal notice warning of penal consequences for breach. Despite this, the Respondent continued with construction, as evidenced by photographs showing the house's...
Source-derived case information.
- Citation
- [2016] KEELC 1034 (KLR)
- Parties
- Plaintiff: Jepngetich Kiplagat Kisorio; Defendant: Moraa Mukua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2015
- Procedural Posture
- Contempt Application / Ruling
- Outcome
- Application for contempt allowed. Respondent found in contempt of court.
- Judges
- EO Obaga
- Legal Topics
- Contempt of Court, Injunctions, Enforcement of Court Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jepngetich Kiplagat Kisorio
Plaintiff
Moraa Mukua
Defendant
Procedural Posture
Contempt Application / Ruling
Legal Issues
- 1 Whether there was a valid court order restraining the Respondent from construction on the disputed land.
- 2 Whether the Respondent was duly served with the court order containing a penal notice.
- 3 Whether the Respondent disobeyed the court order and continued construction.
Ratio Decidendi
The court found that a valid court order restraining the Respondent from further construction on the disputed land was issued and duly served, including a penal notice warning of penal consequences for breach. Despite this, the Respondent continued with construction, as evidenced by photographs showing the house's progression from commencement to near completion. The Respondent did not appear or respond to the application, and the evidence demonstrated willful disobedience of the court order. The court held that the Respondent was in contempt of court and directed her arrest to be brought before the court for punishment, emphasizing the necessity of upholding the dignity and authority of...
Court Disposition
Application for contempt allowed. Respondent found in contempt of court.
Orders
- The OCS Kitale police station is directed to arrest the contemnor and bring her before the court for punishment in accordance with the law.
- Respondent to pay costs of the application.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENNVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 99 OF 2015
JEPNGETICH KIPLAGAT KISORIO...............PLAINTIFF
VERSUS
MORAA MUKUA................................DEFENDANT
R U L I N G
The Plaintiff/Applicant filed a Notice of Motion dated 21/11/2015 seeking to commit the Defendant/Respondent to jail for a period not exceeding six months for contempt of court. The Applicant had filed suit against the Respondent on 28/7/2015. The Applicant had sought an order of injunction restraining the Respondent from proceeding with construction of a house she had started erecting on the Applicant's property known as Plot No. 284 at Zea Settlement scheme also known as ADC Zea.
The Applicant was given a temporary injunction restraining the Respondent from further construction pending
inter-partes hearing. The suit papers together with the application and the extracted order were served upon the Respondent who briefly stopped construction but later on went on constructing the house. This is what prompted the Applicant to file the present Application.
The Respondent who had been duly served with all court documents neither entered appearance nor filed any response to either the application for injunction or application for contempt. The Applicant therefore asks the court to punish the Respondent for disobedience of a court order.
In an application for contempt, the Applicant must demonstrate that there was a valid court order given by a court; that the said court order was served upon the contemnor; that the contemnor proceeded to disobey that order. It is also the practice that the order served must contain a penal clause warning the contemnor of Penal consequences should there be breach of the court order.
In the instant case, there was a valid court order given on 30/7/2015 requiring the contemnor to stop further construction of the house she had started putting up on the disputed land. There is also evidence that the said order was served upon the contemnor. The order contained a penal notice warning the contemnor of penal consequences in case of breach.
There is also evidence that despite the court order stopping further construction, the contemnor went on to construct the house. There are photographs of a house which had just been started before the Applicant obtained injunction orders. There is also a photograph showing the same house which was now almost complete. This clearly shows that despite the contemnor having been stopped from further construction, she ignored the order and went on with construction.
I find that the Respondent is in contempt of a valid court order. She should accordingly face the consequences of such breach of the court order if the diginity of the court is to be guarded. As the contemnor is not before the court, I direct the OCS Kitale police station to arrest the contemnor and bring her before the court so that she can be dealt with in accordance with the law. Respondent to pay costs of the application.
It is so ordered.
Dated, signed and delivered at Kitale on this 31st March 2016.
E. OBAGA
JUDGE
In the presence of M/s Munialo for Applicant.
Court Assistant – Isabellah
E. OBAGA
JUDGE
31/3/16