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Court of AppealOtherCivil Application E262 of 2023· [2023] KECA 1667 (KLR)

Njiriri & 5 others v County Government of Nairobi & another

Court of Appeal
15 December 2023
SKS Ole KantaiFTF TuiyottPGPM Gachoka
955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal found Nairobi County officials guilty of ignoring a court order, but only the actual office-holders at the time face possible civil jail.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kantai, Tuiyott and Gachoka, JJ.A) on a Notice of Motion dated 13th June 2023 by six applicants seeking citation of the County Secretary of the County Government of Nairobi and Robert Mbatia for contempt of status quo orders issued on 14th April 2023 by the Court (Musinga (P), Laibuta and Ngenye-Macharia, JJ.A). Those orders barred further construction or development of plots 34/A, D, E, F and G, restrained eviction of the applicants, and restrained charging or transfer of proprietary interests in the properties. The application was unopposed; the respondents and their advocates neither filed replies nor appeared at the plenary hearing despite service. The Court accepted the applicants' uncontroverted affidavits, which showed that construction continued despite knowledge of the orders and was completed by 27th June 2023 even after the contempt motion had been served on the respondents' advocates. The Court held that a party who knowingly disobeys a court order is in contempt, conduct that prejudices the beneficiary of the order and undermines judicial authority. Applying the principle that civil contempt is akin to a criminal charge and must attach to the actual transgressor, the Court found Robert Mbatia and whoever occupied the office of County Secretary between 14th April 2023 and 16th June 2023 guilty of disobeying the orders, and directed them to attend Court to show cause why they should not be committed to civil jail, with the Registry to give a priority hearing date. No costs order was made.

Key legal issues

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01

Whether the respondents were in contempt of the status quo orders of 14th April 2023

Holding

Yes. The averments were uncontroverted; construction continued despite knowledge of the orders, and continued even after contempt proceedings were served.

Reasoning

The application was unopposed and the applicants' affidavits unchallenged by reply or appearance at the plenary hearing, so the court had no reason to disbelieve them. Construction on the suit properties occurred before or on 13th June 2023 and was completed by 27th June 2023 despite service of the contempt motion on the respondents' advocates on 16th June 2023.

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02

Identification of the proper contemnors where a county government is cited

Holding

The individual named (Robert Mbatia) is cited directly; for the county, the contemnor must be the person who occupied the office of County Secretary at the time of the disobedience.

Reasoning

Because contempt carries penal consequences akin to a criminal charge, liability must attach to the actual transgressor. The court therefore confined liability for the County Government of Nairobi to whoever held the office of County Secretary between 14th April 2023 and 16th June 2023, rather than the current office-holder.

p. 2

Legal principles established

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  • A party who knowingly disobeys a court order is in contempt, conduct that undermines the authority of the court and must not be condoned
  • Contempt in civil proceedings is akin to a criminal charge and penal consequences must fall on the actual transgressor, not the office-holder's successor

Court orders

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  1. 1.Robert Mbatia and the person or persons occupying the office of the County Secretary, County Government of Nairobi between 14th April 2023 and 16th June 2023 are guilty of disobeying the order of this Court made on 14th April 2023 in Civil Application No. E422 of 2022
  2. 2.Robert Mbatia and the County Secretary contemnors shall attend Court to show cause why they should not be committed to civil jail
  3. 3.The Registry of this Court shall, on priority basis, give a date for hearing of the notice to show cause, and the applicants' advocate shall serve a hearing notice upon the contemnors and the advocates on record for the respondents

Authorities

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Legislation

  • Judicature Actsection 5
  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Actsections 1A, 1B, 3, 3A
  • Civil Procedure Rulesrule 51
Jurisdiction invoked
Section 5 of the Judicature Act; rule 5(2)(b) of the Court of Appeal Rules; sections 1A, 1B, 3, 3A of the Civil Procedure Act; rule 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njiriri & 5 others v County Government of Nairobi & another", Case Analysis (2023). Civil Application E262 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1667/eng@2023-12-15

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