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Court of AppealDismissedCivil Application No. 69 of 2014 (UR No. 48/14)

Charles Asikowa Okolo v Emkos Company Limited [2015] KECA 27 (KLR)

Court of Appeal
12 February 2015
859 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to let a man harvest maize he planted in defiance of court orders, ruling courts will never help someone break the law.

What this practically means

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Executive summary

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In this ruling, the Court of Appeal at Kisumu (Maraga, Azangalala and Kantai JJ.A) gave reasons for its ex-tempore order of 20th November 2014 dismissing Charles Asikowa Okolo's Notice of Motion dated 24th October 2014. The applicant had purchased 31 acres of land in Kitale under an agreement that fell through; in Kitale HCCC No. 39 of 2011 his specific performance claim was dismissed but he obtained a refund of the purchase price. Despite that judgment, he refused to vacate the land. Emkos Company Limited, the beneficial owner, obtained injunction orders on 29th January 2014 and 31st March 2014 restraining him from interfering with the land, which were served on him. He nonetheless ploughed the land and planted maize. His High Court application under Sections 3, 3A and 63(e) of the Civil Procedure Act for leave to harvest the crop was dismissed by Obaga, J on 22nd October 2014, prompting this application for leave to harvest and for a stay of that dismissal pending an intended appeal. The court held that the applicant, in contumacious disobedience of clear orders, could not be assisted by any court to harvest the crop; doing so would be an affront to the rule of law, an abuse of process and against public policy. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to enter the suit land and harvest the maize crop he planted thereon pending the lodging and hearing of an intended appeal
  2. 2.Whether a stay of execution of the High Court's dismissal of 22nd October 2014 should issue pending the intended appeal

Key legal issues

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01

Whether equitable relief can be granted to a party who obtained possession of the suit land's benefit in defiance of court orders

Holding

The court refused to permit the applicant to harvest the maize he planted after being restrained by three court orders, holding that doing so would assist his disobedience.

Reasoning

The applicant knew of the injunction orders of 29th January 2014 and 31st March 2014, which were served on him, yet he ploughed the suit land and planted maize in contumacious disobedience. Having been restrained by three orders, his application to harvest the crop was an affront to the rule of law, an abuse of court process and against public policy, and could not be entertained.

p. 2

Legal principles established

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  • A court cannot lend its assistance to a party who seeks relief that would enable him to continue disobeying clear court orders; such an application is an abuse of process and contrary to public policy.

Court orders

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  1. 1.Dismissal of the applicant's Notice of Motion dated 24th October 2014
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
H.C.C.S. No. 31 of 2014
Jurisdiction invoked
Inherent jurisdiction under Sections 3, 3A and 63(e) of the Civil Procedure Act in support of an intended appeal

Relief refused

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Leave to enter the suit land and harvest the maize crop pending the intended appeal

The applicant planted the crop in contumacious disobedience of court orders; granting leave would assist him to continue disobeying court orders

p. 2

Stay of execution of the High Court order of 22nd October 2014 pending the intended appeal

Refused for the same reason - the application amounted to an affront to the rule of law and an abuse of process

p. 2

Costs

Costs of the application awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is not only an affront to the rule of law and an abuse of the court process but also against public policy for any court to, as it were, assist a party to continue disobeying clear court orders.
p. 2Court will not assist disobedience of its orders
Consequently we dismiss this application with costs to the respondent.
p. 2Final disposition
Despite those clear orders which were duly served upon him, the applicant ploughed the suit land and planted maize on it.
p. 2Contempt of court orders

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, "Charles Asikowa Okolo v Emkos Company Limited [2015] KECA 27 (KLR)", Case Analysis (2015). Civil Application No. 69 of 2014 (UR No. 48/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/27/eng@2015-02-12

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