Odhiambo v Mfangano Division Acc & 2 others (Judicial Review 1 of 2022) [2025] KEELC 2951 (KLR)
The bottom line
#A Kenyan court ruled you cannot reopen a contempt case already decided — pay the awarded compensation with interest or face civil jail.
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 Notice of Motion dated 29th April 2019 citing the Interested Party for contempt of the stay order of 27th September 2018 remains open for determination
- 2.Whether the ruling of Ongondo J of 25th July 2023 convicting the Interested Party and ordering compensation of KShs 271,000/= has been set aside and should be given effect
- 3.Whether the Interested Party's new advocates were properly on record and whether his further affidavit and submissions were properly before the court
Key legal issues
#Res judicata of a contempt application already determined by a previous ruling
The application dated 29th April 2019 had been fully determined by the ruling of Ongondo J on 25th July 2023, which found the Interested Party liable for contempt, ordered compensation of KShs 271,000/= and awarded costs; that ruling had never been set aside and the matter could not be re-opened.
The court traced the record: the ruling of 25th July 2023 found the application merited, issued a notice to show cause, ordered compensation of KShs 271,000/= per the Kenya Forest Service assessment report dated 25th March 2019, and awarded costs. Since that ruling stood undisturbed, no further hearing of the same motion was possible; only execution of the orders remained.
Proper procedure for an advocate coming on record for a party already represented
The Interested Party's new counsel, having filed a Notice of Appointment of Advocates instead of a Notice of Change of Advocates under Order 9 Rule 5, was not properly on record, and documents filed through him (the submissions dated 24th October 2024) were struck out.
The court noted the Interested Party had an advocate before the change. Order 9 Rule 5 of the Civil Procedure Rules requires a Notice of Change of Advocates filed and served on all parties. Filing a fresh Notice of Appointment was irregular and unprocedural, and documents filed by such counsel could not stand on the record.
Enforcement of contempt orders after prolonged non-compliance
The contemnor, having failed to comply with the notice to show cause for about four and a half years, is to appear personally on 2nd April 2025 for mitigation and sentencing, and to pay the compensation with interest, failing which he is to be committed to civil jail.
The court observed repeated indulgence of the contemnor through multiple notices to show cause (February to June 2024) despite service, and subsequent procedural manoeuvres, concluding he was bent on continuous disobedience. Since the conviction ruling of 25th July 2023 had never been set aside, its orders had to be given effect forthwith.
Legal principles established
#- Once an application has been fully determined and a ruling issued, the matter is res judicata and the same court cannot revisit or vary its own decision in the same application
- A new advocate must file and serve a Notice of Change of Advocates under Order 9 Rule 5 to be properly on record for a party who already has an advocate
- Unexecuted orders of a court that have not been set aside must be given effect despite prolonged non-compliance
Court orders
#- 1.The submissions dated 24th October 2024 filed by counsel not properly on record are struck out of the record
- 2.The orders of the ruling of 25th July 2023, never set aside, are to be given effect forthwith
- 3.The contemnor is directed to present himself in person voluntarily before the court on 2nd April 2025 at 8:45 AM for mitigation and sentencing over his conviction for contempt of court
- 4.He is also to confirm that he shall have compensated the Applicant the sum of Kenya Shillings 271,000/= together with interest at court rates (12%) per annum from the date the learned judge found him liable, in default of which he be committed to civil jail forthwith
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 Rule 1(4) as read with Order 40 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act
Relief refused
#The Interested Party's request to file a Further Affidavit and to re-open the application dated 29th April 2019
The application had already been fully determined by the ruling of 25th July 2023, which was res judicata and had not been set aside
Costs
No costs order made in this ruling; costs of the contempt application had been awarded by the ruling of 25th July 2023
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.
The Order fi contemnor is therefore directed to present himself in person voluntarily before this court in person on 2nd April 2025 at 8:45 AM for mitigation and sentencing over his conviction for contempt of court, and also to confirm that he shall have compensated the Applicant the sum of Kenya Shillings 271,000/= together with the interest at court rates (12%) per annum from the date the learned judge found him liable to pay the compensation to date, in default he be committed also to civil jail forthwith.
To be clear and plain, as to the merits of the application the issue is res judicata. If the parties thought that this Court could vary the orders or arrive at a difierent decision, they are mistaken.
Rules of procedure ought to be followed. A Notice of Change of Advocates should be filed and served on all parties in order for the new counsel to be properly on record for the party.
As is clear from the record, the Ruling of 25th July 2023 has never been set aside. Its orders should be given efiect forthwith.
Issues in the judgment
#The case number and neutral citation are not stated anywhere in the judgment
Internal date inconsistency: the court refers to an order of 25th September 2018 whereas elsewhere the stay order is dated 27th September 2018
The court record describes the ruling of 25th July 2023 by a different judge, which this court treats as final, but the present judgment is styled a 'Ruling' rather than a judgment; the station and case number are also absent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Mfangano Division Acc & 2 others (Judicial Review 1 of 2022) [2025] KEELC 2951 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2951/eng@2025-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.