Sum (Suing as the administrator of the Estate of Ernest Sum) v Samoei (Environment & Land Case E057 of 2022) [2024] KEELC 4369 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection should be sustained
- 2.Whether the Supporting Affidavit is defective
- 3.Whether the plaintiff is entitled to the orders sought
Key legal issues
#Whether the preliminary objection was a true preliminary objection
It failed because it was based on contested facts rather than pure law
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.
Whether the Supporting Affidavit sworn by Edel Sum, daughter of the plaintiff, was defective
It was not defective because its contents were within the deponent's knowledge as daughter and beneficiary
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.
Whether the Respondent was guilty of contempt of the injunctive orders of 13th March 2023
Yes - the applicant proved the elements of civil contempt and the defendant was guilty
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.
Legal principles established
#- 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
#- 1.Preliminary Objection dated 30th October 2023 dismissed
- 2.Finding that the defendant is guilty of contempt for disobeying the orders of injunction issued on 13th March 2023
- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Costs not addressed in the final orders; the Applicant had prayed that costs be in the cause.
Quotable passages
#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.
Blatant disobedience of court orders cannot be countenanced. The excuse offered by the Respondent is no defence and cannot hold before this court.
There are essentially four elements that must be proved to make the case for 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.
Issues in the judgment
#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
Inconsistent references to the deceased's name and the suit property number
No costs order made in the final orders despite the Applicant's prayer that costs be in the cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.