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ELCPartially AllowedChamber Summons dated 26th August 2015 (arising from petition filed 18th August 2015)· [2016] KEELC 178 (KLR)

All Africa Conference of Churches, Registered Trustees v Nairobi City County [2016] KEELC 178 (KLR)

Environment and Land Court
4 November 2016
SOS. Okong'o
1,745 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found a contractor guilty of ignoring a stop-construction order, but discharged an official who was never personally told about the order.

What this practically means

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Executive summary

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The petitioner, which had filed a petition on 18th August 2015 together with a Chamber Summons seeking conservatory orders, obtained interim orders from Korir J. on 20th August 2015 restraining the respondent and its contractor, Mogoi Quality Suppliers Limited, from continuing construction of a public toilet on a road reserve adjacent to the suit property. By a further Chamber Summons dated 26th August 2015, the petitioner sought to cite Dr. Ayisi, the respondent's Director of Public Health, and Mr. Oanda Orina, a director of the contractor, for contempt of that order. The respondent opposed through grounds of contention that Dr. Ayisi was not served with the order or the application and that leave of the court was required. Applying Hadkinson v Hadkinson, Mutitika v Baharini Farm Ltd, Ochino v Okombo and Basil Criticos v Attorney General, the court held that knowledge of a court order supersedes the requirement of personal service, but that the burden lay on the petitioner to prove service or knowledge to a standard higher than the balance of probabilities. There being no evidence that Dr. Ayisi was served with the order or was aware of it, and the contempt application never having been served on him, he was discharged. Mr. Oanda Orina, who was personally served and did not oppose the application, was found guilty of contempt. The court found no leave was required to institute the proceedings. The application succeeded in part: prayer 3 was granted, with costs to the petitioner, and Mr. Oanda Orina was to be summoned for mitigation before sentencing.

Key legal issues

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01

Whether Dr. Ayisi was guilty of contempt

Holding

Dr. Ayisi discharged; contempt not proved against him

Reasoning

The order was served on an unnamed advocate in the Legal Director's office, service was disputed, and no evidence showed Dr. Ayisi knew of the order despite him being the known officer in charge of the project. Further, the contempt application itself was never served on him, which independently precluded a finding of guilt.

p. 3
02

Whether Mr. Oanda Orina was guilty of contempt

Holding

Found guilty of contempt

Reasoning

He was personally served with the court order at the construction site and with the contempt application, did not oppose the application, and did not contest service or the defiance. The petitioner proved to the required strict standard that he continued construction in defiance of the order.

p. 3
03

Whether leave of the court was required to institute contempt proceedings

Holding

No leave was required in the circumstances of this case

Reasoning

The respondent contended the application was bad in law for want of leave, but the court found no basis for that contention and agreed with the petitioner that no such leave was required in the circumstances.

p. 3

Legal principles established

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  • The obligation to obey a court order of competent jurisdiction is plain and unqualified; disobedience results in contempt punishable by committal or attachment
  • 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
  • Knowledge of a court order supersedes the requirement of personal service; where a party clearly acts with knowledge of the order, proof of personal service is unnecessary
  • Where the officer in charge of a disputed project is known, attempts should be made to serve the order upon that officer, and the contempt application must be served personally upon the alleged contemnor

Court orders

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  1. 1.Mr. Oanda Orina is found guilty of contempt of court
  2. 2.Dr. Ayisi is discharged
  3. 3.Mr. Oanda Orina shall be summoned to appear before the court on a date to be fixed to address the court in mitigation before sentence is passed
  4. 4.Prayer 3 of the application granted to the petitioner
  5. 5.Costs of the application granted to the petitioner

Authorities

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Legislation

  • Rules of this Court / procedural rules governing contempt and committal (implied by 'want of leave' objection)not specified

Cases cited (4)

  • Hadkinson vs. Hadkinson
    [1952] All E.R 567
  • Mutitika vs. Baharini Farm Ltd.
    [1985] KLR 227
  • Ochino & another vs. Okombo & 4 others
    [1989] KLR 165
  • Basil Criticos vs. Attorney General & 8 others
    (2012) eKLR
Jurisdiction invoked
Original constitutional/judicial review jurisdiction of the Environment and Land Court over the petition; contempt application brought within that petition (no specific provision quoted)

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, "All Africa Conference of Churches, Registered Trustees v Nairobi City County [2016] KEELC 178 (KLR)", Case Analysis (2016). Chamber Summons dated 26th August 2015 (arising from petition filed 18th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/178/eng@2016-11-04

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