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ELCDismissedNotice of Motion dated 5th October 2016 (Mombasa ELC suit re Plot No. 137/MN)· [2017] KEELC 2166 (KLR)

Salim Said Juma & 10 others v Rafiq Mohamed Wali Mohamed Aswari & another [2017] KEELC 2166 (KLR)

Environment and Land Court
25 July 2017
CYC. Yano
1,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 2nd defendant moved the Environment and Land Court at Mombasa by Notice of Motion dated 5th October 2016, brought under Order 40 Rule 3 of the Civil Procedure Rules, seeking to have four plaintiffs (Kadzano Mohamed, Salim Said Juma, Reuben Athuman and Aggrey Magoma) committed for contempt of a ruling of 16th December 2015 which granted a temporary injunction restraining the plaintiffs from entering, trespassing on, or interfering with the 2nd defendant's possession of Plot No. 137/MN pending the hearing of the suit. The applicant alleged that on 14th September 2016 the named plaintiffs came to the plot claiming ownership and had to be chased away, an incident reported to Bamburi Police Station. The respondents opposed the application as misconceived and an abuse of process, arguing that no formal order had been extracted and personally served on them. The applicant relied on Shimmers Plaza Ltd v National Bank of Kenya to argue that counsel's presence when the ruling was delivered created a presumption of notice. The court, C. Yano J, restated that contempt must be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt, and that the alleged breach must be precisely defined since contempt is criminal in character and may cost a party his liberty. The court found that the Notice of Motion of 30th June 2015 contained an error - it sought to protect the plaintiff's rather than the 2nd defendant's possession - and the ruling allowed the application in the terms drawn, producing an ambiguous order which would have been avoided had it been extracted and served. Unable to hold beyond any shadow of doubt that the order was precise, clear and disobeyed, the court found the application without merit and dismissed it with costs on 25th July 2017.

Key legal issues

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01

Whether knowledge of an order through counsel, absent extraction and personal service, suffices for contempt

Holding

Although the Court of Appeal in Shimmers Plaza has affirmed that counsel's knowledge can suffice, here the order itself was ambiguous, so contempt could not be established

Reasoning

The applicant argued that because the respondents' advocate was present when the ruling was delivered, a presumption of notice arose, relying on Shimmers Plaza. The respondents argued the order had to be extracted and personally served. The court found no formal order was extracted or served, and that the order as allowed carried an internal ambiguity (restraining interference with the 'plaintiff's' rather than the 2nd defendant's possession), making contempt unsafe to find.

p. 3
02

Whether the order of 16th December 2015 was precise and clear enough to found a contempt finding

Holding

No - the ambiguity in the motion and the resulting order meant the alleged breach could not be precisely defined, and the application failed

Reasoning

The court held it must be satisfied beyond any shadow of doubt that the order was precise, clear and disobeyed. Because the Notice of Motion mistakenly sought to protect the plaintiff's possession rather than the 2nd defendant's, and the court allowed the application in the terms drawn, the resulting order was ambiguous. That ambiguity would have been avoided had the order been extracted and served; without clarification, contempt could not be safely found.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than a balance of probabilities but not exactly beyond reasonable doubt
  • The breach alleged in contempt proceedings must be precisely defined because contempt is criminal in character and may cost a party his liberty

Court orders

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  1. 1.The Notice of Motion dated 5th October 2016 seeking to hold the plaintiffs in contempt is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3
  • Contempt of Court Act2016

Cases cited (6)

  • SHIMMERS PLAZA LTD – V- NATIONAL BANK OF KENYA
    (2015) eKLR
  • KENYA TEA GROWERS ASSOCIATION V- FRANCIS ATWOLI AND OTHER
    (2012) eKLR
  • SOO AND 3 OTHERS –V- DEREK OTIENO OLUOCH
    (2016) eKLR
  • SIMON KIMANI – V- GEOFFREY GATHIGI AND ANOTHER
    (2014) eKLR
  • REFRIGERATOR AND KITCHEN UTENSILS LTD –V- GULABCHAND POPATLAL AND OTHERS
  • GATHARIA MITIKA & OTHERS –V- BAHARIN FARM LTD
Jurisdiction invoked
Order 40 Rule 3 of the Civil Procedure Rules; Contempt of Court Act, 2016

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, "Salim Said Juma & 10 others v Rafiq Mohamed Wali Mohamed Aswari & another [2017] KEELC 2166 (KLR)", Case Analysis (2017). Notice of Motion dated 5th October 2016 (Mombasa ELC suit re Plot No. 137/MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2166/eng@2017-07-25

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