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ELCPartially AllowedNot stated in the judgment (Environment and Land Court suit; application dated 17th October 2023)

Sum (Suing as the administrator of the Estate of Ernest Sum) v Samoei (Environment & Land Case E057 of 2022) [2024] KEELC 4369 (KLR)

Environment and Land Court
28 May 2024
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who ignored a court injunction was found guilty of contempt and must appear in court to explain why he should not be jailed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (J.M Onyango, J) deals with a Notice of Motion dated 17th October 2023 seeking to cite the Defendant/Respondent for contempt of injunctive orders issued by the court on 13th March 2023 restraining him from trespassing on parcel L.R 2226 (I.R 603), and a Notice of Preliminary Objection dated 30th October 2023. The objection was that the supporting affidavit was sworn by Edel Sum, the plaintiff's daughter and a mere beneficiary of the estate, not the plaintiff herself, and that the defendant had occupied the land since 1982 as agent of Celine George Poland. The court heard both by way of written submissions. Dismissing the preliminary objection, the court applied Oraro v Mbaja and held it was marred by contested facts rather than being a pure point of law. On the affidavit, the court held that Edel Sum, as daughter and beneficiary, was privy to the information and the affidavit did not offend Order 19 rule 3 of the Civil Procedure Rules. On contempt, applying the four elements from Samuel M. N. Mweru v National Land Commission, the court found the orders clear, the defendant's knowledge admitted, his continuing occupation and farming a deliberate breach, and his claim of agency for Celine George Poland contradicted by prior findings in ELC 418 of 2012 and Succession Cause 38 of 2018. The defendant was found guilty of contempt and ordered to appear in open court on 12th June 2024 to show cause why he should not be punished. Costs were not addressed in the final orders.

Questions the Court framed

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

  1. 1.Whether the preliminary objection should be sustained
  2. 2.Whether the Supporting Affidavit is defective
  3. 3.Whether the plaintiff is entitled to the orders sought

Key legal issues

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01

Whether the preliminary objection was a true preliminary objection

Holding

It failed because it was based on contested facts rather than pure law

Reasoning

Applying Oraro v Mbaja, the court found the objection raised factual issues requiring evidence - whether the defendant was a trespasser and the authenticity and standing of the deponent of the supporting affidavit - and therefore did not qualify as a pure point of law.

p. 4
02

Whether the Supporting Affidavit sworn by Edel Sum, daughter of the plaintiff, was defective

Holding

It was not defective because its contents were within the deponent's knowledge as daughter and beneficiary

Reasoning

The court examined the affidavit, the Grant annexed and the order annexed, found the information not exclusive, and held that as daughter of the plaintiff and a beneficiary of the estate, Edel Sum was expected to be privy to the information, satisfying Order 19 rule 3 of the Civil Procedure Rules.

p. 5
03

Whether the Respondent was guilty of contempt of the injunctive orders of 13th March 2023

Holding

Yes - the applicant proved the elements of civil contempt and the defendant was guilty

Reasoning

The orders were clear, the defendant admitted knowledge, and he admitted continuing occupation and farming, claiming agency for Celine George Poland - a claim already rejected by the ELC in ELC 418 of 2012 and in Succession Cause 38 of 2018. His disobedience was deliberate and intentional; his excuse was no defence.

p. 6

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous binding order, knowledge of the order, breach of the order, and deliberate conduct
  • A preliminary objection must rest purely on points of law and not contested facts
  • Affidavits in interlocutory proceedings may contain statements of information and belief showing sources and grounds

Court orders

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  1. 1.Preliminary Objection dated 30th October 2023 dismissed
  2. 2.Finding that the defendant is guilty of contempt for disobeying the orders of injunction issued on 13th March 2023
  3. 3.The Respondent shall personally appear in open court on 12th June 2024 to show cause why he should not be punished for contempt

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in pending suit proceedings (contempt application arising from injunctory orders issued by this court on 13th March 2023)

Relief refused

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Immediate committal of the Respondent to civil jail

The court found him guilty but directed him to appear in court to show cause why he should not be punished for contempt

p. 6

Costs

Costs not addressed in the final orders; the Applicant had prayed that costs be in the cause.

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.

Consequently I find and hold that the defendant is guilty of contempt for disobeying the orders of injunction issued by this court on 13th March 2023. The Respondent shall personally appear in open court on 12th June, 2024 to show cause why he should not be punished for contempt.
p. 6Final orders - finding of contempt and notice to show cause
Blatant disobedience of court orders cannot be countenanced. The excuse offered by the Respondent is no defence and cannot hold before this court.
p. 6Deliberate disobedience of court orders
There are essentially four elements that must be proved to make the case for civil contempt.
p. 5Elements of civil contempt
Based on the Mbaja case (Supra) it is only finding that the Preliminary Objection is marred with contested facts and does not qualify to be a Preliminary Objection as described by the law. It thus fails.
p. 4Preliminary objection dismissed

Issues in the judgment

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minor

Inconsistent references to the date of the ruling issuing the injunctive orders - the judgment refers variously to a ruling dated 13th March 2023, orders issued 10th March 2023, and a ruling dated 10th March 2023 whose orders were issued on 13th March 2023

minor

Inconsistent references to the deceased's name and the suit property number

minor

No costs order made in the final orders despite the Applicant's prayer that costs be in the cause

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, "Sum (Suing as the administrator of the Estate of Ernest Sum) v Samoei (Environment & Land Case E057 of 2022) [2024] KEELC 4369 (KLR)", Case Analysis (2024). Not stated in the judgment (Environment and Land Court suit; application dated 17th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4369/eng@2024-05-28

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