Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Suit filed 11th June 2014)· [2016] KEELC 157 (KLR)

Duncan Hiram Kimani & another v Dominic Gatheca Kinyanjui & another [2016] KEELC 157 (KLR)

Environment and Land Court
4 November 2016
SOS. Okong'o
3,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Nairobi court found a land developer guilty of ignoring a court order stopping construction, though jail time awaits a separate mitigation hearing.

What this practically means

#

Executive summary

#
The Plaintiffs sued the Defendants over Plots No. 449 (R459) and 472 (496) at Lucky Summer Estate, Phase II, and obtained an exparte temporary injunction from Kamau J. on 11th June 2014 restraining construction pending inter partes hearing. By a Notice of Motion dated 16th June 2014, the Plaintiffs sought enforcement of that order through the County Commissioner of Police, Nairobi, and the committal of the 2nd Defendant to civil jail for six months for contempt, supported by affidavits of the 1st Plaintiff and process server Peter Mburu Waithaka, who deponed to personal service of the order on the 2nd Defendant on 12th June 2014 in the presence of the O.C.S Ruaraka Police Station. The Defendants denied service, contending they first learnt of the suit on 23rd June 2014, and relied on an affidavit of one Dominic Gathecha Kinyua, who claimed he had been pressured at Ruaraka Police Station to sign documents referring to the 1st Defendant. Applying the higher quasi-criminal standard of proof in contempt proceedings and the qualified presumption in favour of a process server's affidavit, Okong'o J. found the process server's detailed account worthy of belief and the 2nd Defendant's denial uncorroborated. The court held that the 2nd Defendant was duly served and, having continued construction until 23rd June 2014, was guilty of contempt. However, the committal prayer was declined, with sentencing deferred to allow mitigation, and police assistance was refused as unnecessary since construction had ceased, with liberty to apply afresh. The Plaintiffs received the costs of the application.

Key legal issues

#
01

Whether the 2nd Defendant disobeyed the order of 11th June 2014

Holding

The 2nd Defendant was duly served with the order on 12th June 2014 and continued construction in defiance, amounting to contempt of court

Reasoning

The process server gave a detailed, corroborated, step-by-step account of personal service witnessed by several persons including the O.C.S Ruaraka Police Station. The 2nd Defendant offered a mere uncorroborated denial, gave no account of his movements on 12th June 2014, and did not pursue his stated intention to cross-examine the deponents. The affidavit of Dominic Gathecha Kinyua added no weight and he was found not worthy of trust.

p. 4
02

Whether police assistance should be granted to enforce the order

Holding

The prayer for police assistance was refused as unnecessary since construction had ceased, with liberty to apply afresh if needed

Reasoning

The 2nd Defendant's workers were arrested on 23rd June 2014 and construction ceased thereafter. There was no evidence of any subsequent activity on the land, so the coercive assistance of the County Commissioner of Police was not required. The Plaintiffs may move the court again should the 2nd Defendant resume activity while the orders remain in force.

p. 5

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, given the quasi-criminal nature of contempt
  • A court order requiring a person to do or abstain from doing an act cannot be enforced by committal for contempt unless a copy of the order has been served personally on that person
  • Where service is disputed, there is a qualified presumption in favour of the process server and the burden lies on the party questioning the service to show the return is incorrect

Court orders

#
  1. 1.A finding that the 2nd Defendant is guilty of contempt of court
  2. 2.The 2nd Defendant to appear before the court on a date to be fixed for mitigation before sentencing
  3. 3.Prayer 2 of the application dated 16th June 2014 (committal to civil jail) declined
  4. 4.The Plaintiffs at liberty to make an application to court for police assistance should it become necessary
  5. 5.The Plaintiffs awarded the costs of the application

Authorities

#

Cases cited (4)

  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 227
  • Ochino & Another vs. Okombo & 4 Others
    [1989] KLR 165
  • Karatina Garments Ltd. vs. Nyanarwa
    [1976] KLR 94
  • Miruka vs. Abok & Another
    [1990] KLR 541
Jurisdiction invoked
Inherent powers of the court to punish for contempt of its orders (application under Notice of Motion dated 16th June 2014); no specific constitutional or statutory provision stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Duncan Hiram Kimani & another v Dominic Gatheca Kinyanjui & another [2016] KEELC 157 (KLR)", Case Analysis (2016). Not stated in the judgment (Suit filed 11th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/157/eng@2016-11-04

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