Double Clean Limited & 6 others v Jambo Holdings Limited & 2 others [2020] KECA 889 (KLR)
The bottom line
#The Court of Appeal upheld an injunction and contempt finding, confirming that anyone aware of a court order must obey it until a court formally sets it aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants were properly held in contempt of the order of 13th March 2015
The finding of contempt was upheld: the appellants had knowledge of the order, service was evidenced by uncontroverted affidavits of service, and the order was clear and unambiguous as regards LR No 7750 Nairobi.
The order was extracted and issued bearing a penal notice; the appellants themselves filed a motion seeking to set it aside, demonstrating knowledge. An affidavit of service was uncontroverted, and counsel for the appellants was in court when the order was extended. The court adopted the Hadkinson principle that a party who knows of an order cannot disobey it, and found the appellants knew LR No 7750 Nairobi was the same land as Nairobi/Block 92/225-230 from their own earlier suit ELC No 536 of 2014. The contempt ground therefore failed.
Whether Jambo Holdings established a prima facie case warranting an interim injunction
There was sufficient material to establish a prima facie case with a probability of success, including the appellants' withdrawal of ELC No 536 of 2014 while status quo orders were in force and the unresolved question of how the two sets of titles came into being.
The court noted that the appellants had filed ELC No 536 of 2014 seeking nullification of Jambo Holdings' title, obtained a status quo order, then withdrew the suit, prompting the present suit. The court held this was a valid basis for an injunction to interrogate whether the withdrawal was regular and an abuse of process, and to examine how LR No 7750 was subdivided into Nairobi/Block 92/225-230. Balance of convenience favoured Jambo Holdings, who were in possession, with risk of transfer to third parties.
Whether special circumstances justified the mandatory injunction
Special circumstances existed: the withdrawal of ELC No 536 of 2014 despite subsisting status quo possession by Jambo Holdings, followed by the invasion of the suit land, amounted to stealing a match, justifying the mandatory order restoring the property to its prior condition.
Applying the Kenya Breweries v Okeyo test, the court identified the existence of ELC No 536 of 2014, the status quo order permitting Jambo Holdings to remain in possession, the appellants' knowledge that LR No 7750 and Nairobi/Block 92/225-230 were the same land, the withdrawal of the suit and the subsequent invasion as the standout special circumstances. The mandatory nature of the order was meant to restore the suit property to the condition ante.
Whether the appellants were denied a fair hearing on their applications to discharge, vary or stay the order of 13th March 2015
No denial of a fair hearing: once the injunction and contempt orders were confirmed, the relief sought in those applications was overtaken by events, and the same evidence and submissions had been considered.
The court held that after confirmation of the injunction and contempt orders it was impracticable to stay or vary them; the orders sought were the converse of those issued and the outcome would be the same. The appellants' affidavit evidence and submissions in opposition were the same as those supporting their applications, so they were in substance heard. Judicial economy also favoured not entertaining redundant applications.
Legal principles established
#- A party who knows of a court order, whether null or valid, regular or irregular, cannot disobey it; the order must be obeyed until discharged by the court.
- A mandatory injunction may only be granted on an interlocutory application in the absence of special circumstances, in clear cases, and upon a higher degree of assurance than for a prohibitory injunction.
- Where an affidavit of service is on record and uncontroverted, the burden lies on the party questioning it to show that the return was incorrect.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Environment and Land Court at Nairobi
- ELC No. 219 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the Environment and Land Court (Court of Appeal rules on appeal from the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Double Clean Limited & 6 others v Jambo Holdings Limited & 2 others [2020] KECA 889 (KLR)", Case Analysis (2020). Civil Appeal No. 355 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/889/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.