Zizzlers Cafe v Salaam Holdings Limited & another [2016] KEELC 996 (KLR)
The bottom line
#Kenya's Environment and Land Court jailed-and-fined a landlord for destroying a tenant's property despite knowing a court order protected it.
What this practically means
#Executive summary
#Key legal issues
#Whether orders capable of obedience existed
The court found injunction orders in respect of the suit premises existed and, after correction of the parcel number, applied to Eldoret/Municipality/Block 7/68.
The orders of 3rd, 4th and 5th June 2015 granted a mandatory temporary injunction and a restraining injunction. On 2nd July 2015, upon the applicant clarifying an error in the parcel number, the court extended the interim orders to Eldoret/Municipality/Block 7/68. The court therefore found executable orders existed as at that date.
Whether the 2nd respondent was aware of the orders
Awareness was established through substituted service by publication and the respondent's entry of appearance and filing of pleadings through an advocate.
The pleadings and order were served by substituted service in the Standard Newspaper on 6th June 2015. The defendant instructed advocates who filed a memorandum of appearance, replying affidavit and defence on 10th June 2015, confirming knowledge of the orders.
Whether the 2nd respondent disobeyed the orders
The 2nd respondent was found guilty of the second act of contempt (destruction of grills and display window at 3.00 p.m. on 2.7.2015) but not the first act (night of 1st/2nd July 2015).
Although aware of the orders, the order initially described the wrong parcel (7/65 instead of 7/68). The court corrected the parcel number on 2nd July 2015 in the presence of counsel. The acts at 3.00 p.m. after that correction were done with knowledge of the corrected order, while the earlier night acts could not ground liability.
What punishment should be imposed
Imprisonment for 3 months or a fine of Kshs.600,000, plus an order to repair the property within 30 days.
Section 29 of the Environment and Land Court Act empowers the court to punish disobedience of its orders with imprisonment of up to 2 years or a fine not exceeding twenty million shillings. Exercising that discretion, the court imposed a 3-month term or Kshs.600,000 fine and directed repairs.
Legal principles established
#- A party who knows of a court order, whether null and void, regular or irregular, cannot be permitted to disobey it; the proper course is to apply to have it discharged, not to disobey it.
- The standard of proof in contempt matters is higher than a balance of probability but not exactly beyond reasonable doubt.
Court orders
#- 1.The 2nd respondent to serve a prison term of 3 months or pay a fine of Kenya Shillings six hundred thousand (Kshs.600,000)
- 2.The defendants to repair the property by filling up the drilled holes and repairing the grills and the display windows within the next 30 days
- Jurisdiction invoked
- Environment and Land Court Act (Cap 12A), including sections 13(7) and 29
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zizzlers Cafe v Salaam Holdings Limited & another [2016] KEELC 996 (KLR)", Case Analysis (2016). Application dated 6th July, 2015 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/996/eng@2016-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.