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 (Originating Summons filed 8th September 2016)· [2017] KEELC 896 (KLR)

Vitalis Otieno Wanga & 7 others v Bollore Transport & Logistice Kenya [2017] KEELC 896 (KLR)

Environment and Land Court of Kenya
16 November 2017
CYC. Yano
2,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to punish a company for contempt because the property damage happened before its order was served, and an unserved injunction automatically lapsed.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (C. Yano, J) determined three applications: two by the Plaintiffs seeking committal for contempt of Bollore Transport & Logistics Kenya Ltd's Legal Advisor (Mr. Mwangi Gitau) and Contractor (Mr. Bosco Aketch) for allegedly disobeying an interim injunction issued on 9th September 2016 restraining further eviction, demolition and destruction on Plots MN/V/682 and 722 Changamwe; and one by the Defendant seeking to set aside or discharge that injunction and the status quo order of 9th November 2016. On contempt, the court applied the standard of proof from Refrigerator & Kitchen Utensils Ltd v Gulabchand Popatial Shah (approving Gatharia Mitika v Bahrain Farm Ltd): higher than balance of probabilities but below beyond reasonable doubt, because contempt is of criminal character and liberty is at stake. The court found the Plaintiffs' own pleadings admitted the demolitions had occurred before the order was made, and the Defendant asserted, consistently with those pleadings, that the demolitions took place before service; contempt was therefore not proved and both Plaintiffs' applications were dismissed. On the Defendant's application, the court applied Order 40 Rule 4(3), requiring service of the order, application and pleadings within three days on pain of automatic lapse. Only the Order was served; the Originating Summons was not, and no explanation was given. The injunction automatically lapsed on 11th September 2016 and the court set aside or discharged the ex-parte injunction. Each party was ordered to bear its own costs. Judgment delivered on 16th November 2017 at Mombasa.

Key legal issues

#
01

Whether contempt was proved

Holding

Contempt was not proved; the applications for committal were dismissed

Reasoning

The Plaintiffs' own pleadings admitted the demolition and destruction occurred before the order of 9th September 2016 was made, making it unclear what the order restraining 'further' demolition was meant to achieve. Given the criminal character of contempt and the heightened standard of proof, the court could not safely find the Defendant or its agents disobeyed the order after service.

p. 3
02

Whether the ex-parte injunction stood

Holding

The injunction automatically lapsed for want of service of the pleadings within three days

Reasoning

Order 40 Rule 4(3) requires the applicant to serve the order, application and pleadings within three days, failing which the injunction lapses automatically. The process server's affidavit and the Plaintiffs' own response showed only the Order was served, not the Originating Summons, and no explanation was offered. The injunction therefore lapsed on 11th September 2016 and was set aside.

p. 4

Legal principles established

#
  • The standard of proof in contempt is higher than balance of probabilities but not beyond reasonable doubt
  • Failure to serve the order, application and pleadings within three days causes an ex-parte injunction to lapse automatically

Court orders

#
  1. 1.Dismissal of the Plaintiffs' Applications dated 16th September 2016 and 6th July 2017 for contempt
  2. 2.Setting aside/discharge of the ex-parte Order of Injunction issued on 8th September 2016
  3. 3.Each party to bear their own costs

Authorities

#

Legislation

  • Contempt of Court ActGenerally (came into operation 13th January 2017)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4 (including Rule 4(3))

Cases cited (2)

  • Refrigerator & Kitchen Utensils Ltd –Vs- Gulabchand Popatial Shah & Others
    Civil Appln. No. 39 of 1990
  • Gatharia Mitika & Others –Vs- Bahrain Farm Ltd
    Civ. Appln. No. 24 of 1995
Jurisdiction invoked
Inherent jurisdiction and civil procedure rules governing contempt and injunctions (Contempt of Court Act, 2016; Order 40 Civil Procedure Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Vitalis Otieno Wanga & 7 others v Bollore Transport & Logistice Kenya [2017] KEELC 896 (KLR)", Case Analysis (2017). Not stated in the judgment (Originating Summons filed 8th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/896/eng@2017-11-16

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