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ELCPartially AllowedEnvironment & Land Case 296 of 2017

Adera v Okode (Environment and Land Case 296 of 2017) [2025] KEELC 6467 (KLR)

Environment and Land Court
18 September 2025
4,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Migori court jailed a man for ignoring an eviction order, ruling that filing an appeal does not excuse obeying court orders.

What this practically means

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Executive summary

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The plaintiff/applicant filed a Notice of Motion dated 11th November 2024 seeking a finding that the defendant/respondent, Paul Odera Okode, was in contempt of a decree issued on 29th July 2022, by which the court permanently injuncted the respondent from occupying LR Kamangambo/Kanyimach/787, and of a subsequent order granting the respondent a 90-day stay to vacate. The applicant alleged the respondent remained in occupation and used violence on 10th November 2024 to prevent his driver from ploughing the land. The respondent admitted the orders but contended he had filed a reference at the Court of Appeal in Kisumu (Kisumu Civil Application Ref. No. E416 of 2023), which was allowed on 16th May 2025, and that allowing the application would render the reference nugatory. The court framed two issues: whether the respondent was in contempt, and costs. Applying the test in Samuel M.N. Mweru, the court found the orders clear and unambiguous, the respondent had knowledge and notice, he breached them, and his disobedience was deliberate. The court held that a reference is not an appeal and that, absent a stay of execution, an appeal does not suspend obedience to a decree. The respondent was convicted of contempt. In mitigation he cited dependants and his intended appeal, but the court found him unremorseful and defiant and imposed a deterrent sentence: a fine of KShs 1,000,000/=, in default one year imprisonment, remand in G.K. Prison, Migori, and vacation of the land within one week of compliance, failing which the applicant may return to court. The application was allowed with costs to the applicant. The court also censured the applicant's description of the court as having 'bent backwards' as uncivil language insinuating bias.

Questions the Court framed

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

  1. 1.Whether the defendant/respondent should be held in contempt of the court
  2. 2.Who should bear the costs of this application

Key legal issues

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01

Whether the defendant/respondent was in contempt of the decree of 29th July 2022 and the order of 13th July 2023

Holding

The applicant proved the elements of civil contempt: the orders were clear, unambiguous and binding; the respondent had knowledge and notice; he breached them by remaining in occupation and violently resisting ploughing; and his disobedience was deliberate

Reasoning

The decree permanently injuncted the respondent from occupying LR Kamangambo/Kanyimach/787 and a 90-day stay lapsed without compliance. The respondent admitted the orders, never raised ambiguity, and offered no justification. He did not deny the 10th November 2024 attack on the plaintiff's driver. His pendency of a reference at the Court of Appeal did not excuse him, as no stay of execution existed.

p. 8
02

Whether filing a reference at the Court of Appeal absolves the respondent from obeying the orders

Holding

No. A reference is not an appeal, and even an appeal without a stay does not suspend compliance

Reasoning

The court relied on Habo Agencies Limited v Wilfred Odhiambo Musigo and Order 42 Rule 6 of the Civil Procedure Rules, 2010, holding that no appeal operates as a stay of execution unless the court so orders, and that the court's orders remained binding notwithstanding the reference

p. 6
03

The appropriate sentence for contempt

Holding

A deterrent sentence was warranted given the violence, lack of remorse and rampant disobedience of court orders; a fine of KShs 1,000,000/= with default imprisonment of one year, remand in custody, and vacation of the land within one week

Reasoning

The court considered the respondent's mitigation but found him defiant and not remorseful. It noted that the applicant and his driver were endangered when attempting to effect the decree, requiring a firm and decisive deterrent sentence under Section 29 of the Environment and Land Court Act

p. 9

Legal principles established

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  • To succeed in civil contempt, the applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply; wilfulness and bad faith are then inferred unless rebutted
  • Civil contempt must be proved to a standard higher than balance of probabilities but below beyond reasonable doubt
  • Filing an appeal or reference does not operate as a stay of execution; absent a stay, the party is bound to obey the decree
  • A person against whom an order is made is bound to obey it unless and until it is discharged, even if he believes it irregular or void

Court orders

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  1. 1.The Notice of Motion dated 11th November 2024 is allowed with costs to the applicant
  2. 2.The Respondent, Paul Odera Okode, is found guilty of contempt of the court's orders/decree and convicted accordingly
  3. 3.Under Section 29 of the Environment and Land Court Act, the Respondent is sentenced to pay a fine of Kenya Shillings One Million (KShs 1,000,000/=), in default he serves one year imprisonment
  4. 4.The Respondent shall forthwith be remanded in G.K. Prison, Migori
  5. 5.After complying with or serving the sentence, the Respondent shall vacate the suit land within one week, in default the applicant to move the Court once again

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 38 of the Civil Procedure Act

Relief refused

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Imprisonment for thirty (30) days as sought

The court opted for a deterrent fine under Section 29 of the Environment and Land Court Act instead, with remand until payment

p. 9

Fine of Kshs 2,000,000/= as sought

The court sentenced the respondent to a fine of KShs 1,000,000/= rather than the Kshs 2,000,000/= sought

p. 9

Costs

Application allowed with costs to the applicant

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.

Given the foregoing, I find that the application is merited and is allowed with costs to the applicant. The Respondent, Paul Odera Okode is guilty of contempt of this court's orders/ decree as prayed in the application. I convict him accordingly and now call on him to mitigate, which he does orally.
p. 8Conviction for contempt and allowance of the application
Thus, under Section 29 of the Environment and Land Act I sentence him to pay a fine of Kenya Shillings One Million (KShs 1,000,000/=) only in default, he serves year imprisonment. He shall forthwith be remanded in G.K. Prison, Migori.
p. 9Sentence imposed for contempt
Obedience of Court orders is not optional, rather, it is mandatory and a person does not choose whether to obey a court order or not
p. 4Mandatory obedience of court orders (citing Shimmers Plaza Limited)
A court without contempt power is not a court.
p. 5Inherent nature of contempt power (citing Samuel M.N. Mweru)
It is important to note that a reference is not an appeal and the fact of filing one at the Court of Appeal does not in any way guarantee that it will succeed.
p. 6Reference is not an appeal and does not stay execution

Issues in the judgment

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minor

The judgment inconsistently dates the order requiring eviction, referring at various points to 13th July 2023, 6th October 2023 and 13th June 2023

minor

The default term of imprisonment is recorded as 'year' without specifying 'one year'

minor

Paragraph 34 appears incomplete, ending mid-sentence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Adera v Okode (Environment and Land Case 296 of 2017) [2025] KEELC 6467 (KLR)", Case Analysis (2025). Environment & Land Case 296 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6467/eng@2025-09-18

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