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ELCDismissedApplication dated 9th May, 2016· [2017] KEELC 888 (KLR)

Millennium Management Limited v Hamisi Ali Mbwalame & 10 others [2017] KEELC 888 (KLR)

Environment and Land Court
15 November 2017
JOJ.O. Olola
580 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 refused to jail land defendants for contempt because the injunction was never personally served on most of them.

What this practically means

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Executive summary

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This was a contempt-of-court application dated 9th May, 2016 in which the Plaintiff, the registered proprietor of L.R. No. MN/IV/5046/4 Kilifi, sought the committal of the twelve Defendants to civil jail for six months for disobeying an ex-parte temporary injunction issued on 27th April, 2016, restraining them from trespassing on or interfering with the suit land for fourteen days. The Plaintiff's General Manager deponed that the order was served and that the Defendants nonetheless trespassed on 29th April, 2016 and continued new constructions. The 1st Defendant, the Organizing Secretary of Kibarani Ward Progressive Association, responded that over 4,000 residents occupy the land, that they have always been in possession, and that no particular person was shown to be in contempt. The court found the injunction was indeed issued, but the process-server's own affidavit admitted that eleven of the Defendants were not personally served with the order, and no explanation was given for the failure of personal service; the assertion that the 4th Defendant could receive the order on behalf of the others was not accepted as sufficient. The court further found no evidence that the twelve Defendants were the persons who erected the structures complained of, or when the structures were put up. Accordingly, the court declined to hold the Defendants in contempt and dismissed the application with no order as to costs.

Key legal issues

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01

Whether personal service of a court order is a precondition to a finding of contempt

Holding

Yes - the court declined to hold the Defendants in contempt because eleven of them were admittedly not personally served, notwithstanding the process-server's claim that the 4th Defendant could receive the order on their behalf.

Reasoning

The court noted that the temporary injunction of 27th April, 2016 was indeed issued. However, the process-server admitted in his affidavit that he did not personally serve eleven of the Defendants, and the court was not told why personal service was not effected. Without personal service, the Defendants could not be held to deliberate disobedience. Additionally, there was no evidence that the twelve Defendants erected the structures complained of or when they were erected.

p. 2

Legal principles established

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  • A party cannot be committed for contempt of an order that was not personally served on them, and contempt must be proved to the standard required with evidence identifying the contemnor and the contumelious act.

Court orders

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  1. 1.Dismissal of the Application dated 9th May, 2016 with no order as to costs
Jurisdiction invoked
Inherent power of the Environment and Land Court to punish contempt of its own orders (the judgment does not cite a specific statutory provision)

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, "Millennium Management Limited v Hamisi Ali Mbwalame & 10 others [2017] KEELC 888 (KLR)", Case Analysis (2017). Application dated 9th May, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/888/eng@2017-11-15

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