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ELCPartially AllowedNotice of Motion dated 12th January, 2016 in ELC Case (plaint filed 4th December, 2015)· [2017] KEELC 479 (KLR)

Delmonte Kenya Limited v Goshen Gardens Limited & Another [2017] KEELC 479 (KLR)

Environment and Land Court
8 December 2017
SOS. Okong'o
9,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Nairobi court found a school and its director guilty of disobeying a court order, but gave them 120 days to comply before sentencing.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 12th January, 2016 by which the plaintiff sought the arrest and committal for up to six months of David Kigwe (director of the 1st defendant) and Peter Munga (director/trustee of the 2nd defendant) for disobeying orders of 17th December, 2015. Those orders restrained the 2nd defendant from trespassing on, dealing with or operating a school on the suit property, L.R. No. 12157/2, and restrained the 1st defendant from transferring possession of it to the 2nd defendant. The orders were made in the presence of counsel, extracted and personally served with penal notices. The defendants raised preliminary objections on jurisdiction, the validity and constitutionality of the order and the mode of the application, and contended that possession had passed before the order was made. The court framed only two issues: whether the defendants disobeyed the order and, if so, whether they should be punished. It found that the 1st defendant had already handed over possession before the order and was therefore not guilty. It found the 2nd defendant guilty of contempt for continuing to operate Pioneer Girls School on the suit property despite knowledge of the order, and held Peter Munga, as a principal officer, properly cited. The objections were rejected on the ground that a party must obey an order, however irregular it appears, until discharged. The court granted the defendants 120 days to purge their contempt, directed summons for Peter Munga to appear in mitigation on 10th April, 2018, and awarded the plaintiff costs of the application against the 2nd defendant.

Key legal issues

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01

Whether the 2nd defendant and Peter Munga were guilty of contempt of the order of 17th December, 2015

Holding

Guilty of contempt

Reasoning

The order was made in the presence of the defendants' advocates, extracted and personally served with penal notices. The 2nd defendant, aware of the order through its application to discharge it sworn by Peter Munga, continued to operate Pioneer Girls School on the suit property in defiance. Knowledge of the order and continued breach were proved; obedience was required regardless of any perceived irregularity.

p. 13
02

Whether the 1st defendant was guilty of contempt

Holding

Not guilty

Reasoning

The court found as a fact that by 17th December, 2015 the 1st defendant had already handed over possession of the suit property to the 2nd defendant. A party cannot breach an order restraining transfer of possession when it no longer has possession to transfer.

p. 13
03

Preliminary objections on jurisdiction, validity, constitutionality and fairness of the order

Holding

Rejected

Reasoning

The court held that a person served with or aware of an order has a duty to obey it even if it appears to have been given without jurisdiction, is unconstitutional or irregular; the party's remedy is to apply for discharge, which the 2nd defendant had done, and until allowed the order had to be obeyed.

p. 13

Legal principles established

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  • A party who knows of a court order must obey it even if he believes it to be null, invalid or irregular; the proper course is to apply for its discharge
  • A principal officer of a company that disobeys a court order may be cited for contempt, as a company acts through its officers

Court orders

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  1. 1.The 2nd defendant and Peter Munga granted 120 days from the date of the ruling within which to purge their contempt
  2. 2.The Deputy Registrar to issue summons for Peter Munga to appear before the court on 10th April, 2018 to address the court in mitigation before sentencing
  3. 3.Plaintiff to have costs of the application, to be paid by the 2nd defendant

Authorities

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Legislation

  • Civil Procedure Actsection 63(c)
  • Civil Procedure RulesOrder 40 Rule 3
  • Judicature Actsection 5(1)
  • Contempt of Court Actsection 25
  • Constitution of KenyaArticles 24, 27, 50(1), 50(2)(a)
  • Land Actsections 73, 74 and 75
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActChapter 301

Cases cited (6)

  • Hadkinson v Hadkinson
    (1952) ALL ER 567
  • Kyoga Hauliers Limited vs. Long Distance Truck Drivers & Allied Workers Union
    Mombasa CA No. 63 of 2014, (2015) eKLR
  • Woburn Estate Limited vs. Margaret Bashforth
    Malindi CA No. 18 of 2015, (2016) eKLR
  • Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & Another
    Civil Application No. 39 of 1990
  • Mutitika vs. Baharini Farm Ltd
    (1985) KLR 227
  • Christine Wangare Gachege vs. Elizabeth Wanjiru Evans & others
    Civil Application No. 233 of 2007
Jurisdiction invoked
Inherent jurisdiction of the court; section 63(c) Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules

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, "Delmonte Kenya Limited v Goshen Gardens Limited & Another [2017] KEELC 479 (KLR)", Case Analysis (2017). Notice of Motion dated 12th January, 2016 in ELC Case (plaint filed 4th December, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/479/eng@2017-12-08

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