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ELCAllowedNot stated in the extract (Machakos ELC suit involving parcels Mavoko Town Block 3/62387-62393 and 3558)

Michael Wambua Mulwa & another v John Mulwa Nzioki, Jackson Muisyo Mulwa & 4 others [2020] KEELC 3736 (KLR)

Environment and Land Court
31 January 2020
1,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Ignoring a Kenyan court order is no defence even without personal service; knowing about it is enough to be held in contempt.

What this practically means

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Executive summary

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By a Notice of Motion dated 27th May, 2019, the Plaintiffs sought the committal of the 1st and 2nd Defendants to civil jail for six months for disobeying injunctive orders issued on 17th April, 2018 restraining dealings with various Mavoko Town Block 3 parcels. The Plaintiffs established through official searches that between June and October 2018, while the injunction was in force (extended successively until it was dismissed on 31st January, 2019), the 1st Defendant transferred parcels 62387, 62388, 62391, 62392 and 62393 to third parties, and the 2nd Defendant subdivided parcel 3558 and transferred parcel 75880 to Cross Border Works Limited. The 1st Defendant admitted that the extracted orders were served on his advocates on 11th May, 2018. Relying on Mutitika vs. Baharini Farm, Shimmers Plaza, Central Bank of Kenya vs. Ratilal Automobiles and Awadh vs. Marumbu, the court held that personal service is not a prerequisite to contempt, that awareness of an order suffices, and that a subsisting order must be obeyed. The 1st Defendant's assertion that the transfers predated the suit was unproven absent sale agreements and transfer documents. The court found both Defendants in contempt, allowed the Application, directed the Defendants to mitigate before sentencing, and ordered them to pay the costs of the Application. Judgment was delivered in Machakos on 31st January, 2020 by O.A. Angote, Judge.

Questions the Court framed

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

  1. 1.Whether the 1st and 2nd Defendants were served with or had knowledge of the orders of injunction issued on 17th April, 2018
  2. 2.Whether the 1st and 2nd Defendants subdivided and transferred the suit properties during the pendency of the court orders
  3. 3.Whether the Defendants are in contempt and should be committed to civil jail

Key legal issues

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01

Whether the Defendants were in contempt of the injunction orders of 17th April, 2018

Holding

The 1st and 2nd Defendants intentionally and contemptuously subdivided and transferred the suit properties during the pendency of a valid court order.

Reasoning

The Defendants' advocates were aware of the injunctive orders by 26th April, 2018 when they appeared in court and the orders were extended in their presence; the extracted orders were served on them on 11th May, 2018. Official searches showed transfers and sub-divisions between June and October 2018. The Defendants failed to produce sale agreements or transfers proving the process predated the orders.

02

Whether personal service is required before a contempt finding

Holding

Personal service is not a prerequisite; awareness of the order and its contents by the respondent or his advocate suffices.

Reasoning

Relying on Shimmers Plaza Limited vs. National Bank of Kenya Limited, the court held that the Applicant need only show the respondent or his advocate was aware of the order. Here the Defendants' advocates were in court when the orders were extended and were served with the extracted orders on 11th May, 2018.

p. 2

Legal principles established

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  • A person who knowingly wilfully breaches an injunction or order of stay is liable to be committed for contempt of court.
  • Elements to prove contempt are the terms of the order, knowledge of the terms by the respondent and failure to comply; wilfulness and bad faith are then inferred.
  • Personal service of an order is not a prerequisite to a finding of contempt; awareness of the order and its contents suffices.
  • A court order remains binding unless discharged and must be obeyed.

Court orders

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  1. 1.A declaration that the 1st and 2nd Defendants are in contempt of the orders of this court of 17th April, 2018 and issued on 7th May, 2018
  2. 2.The 1st and 2nd Defendants to mitigate before a sentence is issued by the court
  3. 3.The 1st and 2nd Defendants to pay the costs of the Application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court to punish for contempt of its orders (not expressly cited in the extract)

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.

The 1st and 2nd Defendants are in contempt of the orders of this court of 17th April, 2018 and issued on 7th May, 2018.
p. 3Final orders - declaration of contempt
The 1st and 2nd Defendants to mitigate before a sentence is issued by the court.
p. 3Final orders - mitigation before sentencing
it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders
p. 3Rule of law and obedience of court orders
Having failed to show that the process of transferring the land commenced before the orders of this court were issued, or before they became aware of the orders, I find and hold that the 1st and 2nd Defendants intentionally and contemptuously sub-divided and transferred the suit properties during the pendency of a valid court order.
p. 2Burden of proof on defendants alleging prior initiation of transfers

Issues in the judgment

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minor

The judgment refers to the orders as both of 17th April, 2018 and 7th May, 2018; the 7th May 2018 date appears to be the extraction date rather than a separate order, and paragraph 1 misdescribes the 7th May 2018 orders.

minor

The sub-division parcels of Mavoko Town Block 3/3558 are stated as '75378-75880', which appears to be a typographical range error, and one paragraph states the Plaintiff said the properties were subdivided into 'parcels number 75378-75880'.

minor

The committal to civil jail for six months sought in the Notice of Motion was not expressly granted or refused in the orders; the court instead directed mitigation before sentence.

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, "Michael Wambua Mulwa & another v John Mulwa Nzioki, Jackson Muisyo Mulwa & 4 others [2020] KEELC 3736 (KLR)", Case Analysis (2020). Not stated in the extract (Machakos ELC suit involving parcels Mavoko Town Block 3/62387-62393 and 3558). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3736/eng@2020-01-31

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