The Trustees, Kenya Railways Staff Retirement Benefits Scheme & 3 others v The Registered Trustee of Zayed Bin Sultan Al Nahyan & 18 others [2019] KECA 278 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that any deal done in defiance of a court order is a nullity and grants no rights.
What this practically means
#Executive summary
#Key legal issues
#Contempt requires knowledge of the order breached
The Trustees were properly found in contempt because they knew of the preservatory order, having applied to have it discharged, consented to its extension, and then breached it
The Trustees applied on 12th August 2015 to be joined and to have the 21st July 2015 preservatory order vacated, showing full awareness of it. The order was extended from time to time with their consent, including on 4th April 2017, shortly after they had already granted the licence to Jabavu. Dealing with the property by granting a three-year lease was a clear breach. The argument that the contempt application referenced the extension orders rather than the original order was irrelevant, since the extensions continued the original order.
Legal effect of acts done in breach of a court order
A licence granted in contempt of a preservatory order is illegal, a nullity, and confers no recognized legal or contractual rights
Relying on Clarke v Chadburn, Central Bank of Kenya v Ratilal Automobiles and Macfoy v United Africa Co., the Court held that acts done in wilful disobedience of court orders are nullities, void and incurably bad, requiring no order to set aside. The lease by way of temporary licence granted to Jabavu in breach of the preservatory order therefore conferred no rights and the eviction order was well founded.
Alleged ambiguity of the order and retrospective application
The order of 21st July 2015 was clear - it preserved the suit property and forbade further dealings - so the ambiguity and retrospectivity arguments failed
The Court agreed with the Judge's analysis that the preservatory order forbade further dealings in the suit property, and that issuance of the licence was precisely such a dealing. The appellants' contention that they were charged with breaching the wrong order was dismissed as a red herring; the orders of 4th April and 29th May 2017 merely extended the original order.
Legal principles established
#- It is a fundamental tenet of the rule of law that court orders must be obeyed, and any action taken in breach of a court order is a nullity and of no effect
- An act done in wilful disobedience of a court order is not only contempt but an illegal and invalid act incapable of effecting any change in the rights and liabilities of others
Court orders
#- 1.The consolidated appeals (Civil Appeal No. 101 of 2018 and Civil Appeal No. 128 of 2018) are dismissed
- 2.Costs of the appeals awarded to the 2nd respondent
- On appeal from
- Environment & Land Court at Nairobi
- Environment & Land Court Case No. 639 of 2015
- Jurisdiction invoked
- First appeal against a ruling of the Environment & Land Court (Court of Appeal appellate jurisdiction; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Trustees, Kenya Railways Staff Retirement Benefits Scheme & 3 others v The Registered Trustee of Zayed Bin Sultan Al Nahyan & 18 others [2019] KECA 278 (KLR)", Case Analysis (2019). Civil Appeal No. 101 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/278/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.