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ELCDismissed· [2016] KEELC 125 (KLR)

Johannes Akelo Omboto & another v Kenya Railways Corporation [2016] KEELC 125 (KLR)

Environment and Land Court
30 November 2016
1,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a contempt claim against Kenya Railways because the plaintiffs could not prove any disobedience of a consent order.

What this practically means

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Executive summary

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The Plaintiffs moved the court by notice of motion dated 21st March 2013 seeking to have Kenya Railways Corporation cited for contempt of a consent order, contending that the Defendant failed to deposit rent collected from the suit property into an interest-earning account in the names of the parties' advocates, and that it offered the property to Telkom Kenya Ltd in breach of the consent. They sought committal of the Managing Director and Corporation Secretary to civil jail for six months or attachment of the Defendant's property. The Defendant opposed, producing an account opened on 29th May 2013 in the names of the two advocates with a credit balance of Kshs.2,443,810, representing accrued rent, and explained the delay as time taken to reconcile collections. The court framed three issues: disobedience, whether the Defendant should be cited for contempt, and the orders to issue. It found the Defendant's documentary evidence undisputed, confirming compliance as to opening the account and depositing rent. No consent order dated 6th November 2009 was traced, and without evidence of when the Plaintiffs forwarded account opening documents, unreasonable delay could not be established. Applying the elevated standard of proof in Mutitika v Baharini Farm Ltd, the court held the Plaintiffs failed to prove disobedience. The Telkom Kenya and miscellaneous application issues were left to the respective suits. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether the Defendant disobeyed the consent order requiring rent to be deposited into an account in the names of the parties' advocates

Holding

No disobedience established; the account was opened and the collected rent deposited, and the Plaintiffs did not dispute the documentary evidence

Reasoning

The Defendant produced an undisputed statement of account opened on 29th May 2013 in the names of Behan & Okero Advocates and Otieno Yogo & Co. Advocates with a deposit of Sh.2,443,810, which matched the tabulated rent collected from tenants between 1st July 2010 and 11th April 2013. The Plaintiffs did not controvert this evidence, so compliance with the consent order as to opening the account and depositing rent was confirmed.

p. 2
02

Standard of proof applicable to contempt applications

Holding

The Plaintiffs bore the burden of proving disobedience to a standard higher than balance of probabilities

Reasoning

Relying on Mutitika v Baharini Farm Ltd as cited by the Defendant, the court held that contempt must be proved almost but not exactly beyond reasonable doubt. Since the Plaintiffs could not even show when they forwarded the account opening documents, the court could not find unreasonable or inordinate delay, let alone wilful disobedience.

p. 3
03

Whether the Defendant's offer of the suit property to Telkom Kenya Ltd and the filing of Kisumu H.C. Misc. Civil Application No. 256 of 2006 breached the status quo under the consent

Holding

Court declined to determine these matters at this stage, leaving them to the relevant suits or an appeal

Reasoning

The pleadings in Kisumu HCCC No. 34 of 2012 were not availed, so the Telkom Kenya use of a portion of the suit land was left to that matter; the effect of the misc application on the status quo could not be determined one way or the other, and an aggrieved party may appeal. The parties were warned against multiplicity of suits under Sections 6 and 7 of the Civil Procedure Act.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.

Court orders

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  1. 1.The notice of motion dated 21st March 2013 is dismissed with costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 6 and 7

Cases cited (5)

  • Pelican Investments & Another v National Bank of Kenya & 2 others
    [2005] eKLR
  • Peter Mwaura Kariuki v Florence Gachambi & Another
    [2014] eKLR
  • Mutitika v Baharini Farm Ltd
    [1985] KLR 227
  • Republic v Commissioner of Lands & 12 others Exparte James Kiniya Gachira alias James Kiniya Gachiri
    [2004] eKLR
  • Kyangavo v Kenya Commercial Bank Ltd & Another
    [2004] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property and enforcement of its consent order

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, "Johannes Akelo Omboto & another v Kenya Railways Corporation [2016] KEELC 125 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/125/eng@2016-11-30

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