Mariam Mwadena v Said Salim Soban & another [2014] KEELC 139 (KLR)
The bottom line
#A Kenyan court dismissed a contempt claim over disputed land construction because the alleged builder was never personally served with the restraining order.
What this practically means
#Executive summary
#Key legal issues
#Properly on record - Order 9 Rule 9
The firm of Nyakoe Macharia & Co. Advocates was properly on record for the 1st Respondent in the appeal without leave or consent.
Order 9 Rule 9 restricts changes of advocate only after judgment in the same matter. The appeal from the lower court judgment is a separate suit before the appellate court; the Respondent appointed the new firm on 13th June 2014 to act in the appeal, so no leave or consent of the outgoing advocate was required. The Preliminary Objection therefore fails.
Contempt of court orders
No party could be cited for contempt of the order of 27th May 2014 restraining construction.
The order of 25th July 2012 merely stayed execution of the lower court judgment and did not bar sale or development. The construction-restraining order was served only on the 1st Respondent and the site supervisor, not on Mohamed Swaleh, the purchaser. The 1st Respondent swore he had sold the property and was unaware of the construction, and the photographs were undated and the persons unidentified, so contempt could not be proved with certainty.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules applies only where a change of advocate occurs in the same matter after judgment has been delivered; an appeal being a separate suit, a party may appoint a new advocate at any stage of the appeal without leave of the court or the previous advocate's consent.
- An order staying execution of a judgment does not restrain the judgment debtor from selling or developing the suit property; only a party served with a restraining order may be cited for contempt.
Court orders
#- 1.The Appellant's Application dated 5th June 2014 dismissed with no orders as to costs
- On appeal from
- Senior Resident Magistrate's Court
- Kilifi SRMCC No. 512 of 2004
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from the Senior Resident Magistrate's Court (Memorandum of Appeal filed 9th August 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Transport and Safety Authority v [Respondent][2018] KEHC 3548 (KLR)3 Oct 2018followed
Cite this brief
#Cite this brief
Caselaw, "Mariam Mwadena v Said Salim Soban & another [2014] KEELC 139 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/139/eng@2014-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.