Ian Paul Hutchinson t/a/ Bahnhof Bar and Restaurant Mtwapa v Charles Chishenga Majanja [2017] KEELC 2173 (KLR)
The bottom line
#Kenya's Environment and Land Court can punish contempt: a Mtwapa landlord who ignored an injunction and evicted his tenant now faces arrest.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to punish contempt
The ELC has power to punish contempt as a superior court of record of equal status with the High Court
Section 4(2) of the Environment and Land Court Act establishes the court as a superior court of record with the status of the High Court, and Section 14 makes its orders enforceable. Relying on the Supreme Court's decision in Republic v Karisa Chengo, the court held that the ELC exercises the same powers as the High Court in its specialized jurisdiction, so the omission of the ELC from Section 5 of the Judicature Act does not oust its contempt jurisdiction.
Service and knowledge of the orders
The Defendant had knowledge of the injunction orders through personal service on 7th August 2015 and participation in proceedings, and could not feign ignorance
A court process server swore an affidavit that he personally served the interim orders on the Defendant at his Mtwapa residence on 7th August 2015, whereupon the Defendant entered appearance and filed a Replying Affidavit on 12th August 2015. The orders, extended on 8th September 2015, were never discharged or vacated and remained in force until the ruling of 16th September 2016. Knowledge, not strict personal service of the final orders, is the touchstone for contempt.
Whether the Defendant was in contempt
The Defendant's acts of changing the business name, taking back the premises and leasing them to a third party were deliberate and malicious breaches of the injunction
The court found the Defendant consciously resolved the dispute to his own benefit while the court's orders remained in force and the substratum of the suit was pending determination. His conduct was executed cleverly to circumvent the cause of justice and deny the Plaintiff his just entitlement, amounting to contempt of the orders of 7th August 2015 as extended on 8th September 2015.
Legal principles established
#- The Environment and Land Court is of equal status with the High Court and is empowered to punish for contempt of court notwithstanding that Section 5 of the Judicature Act refers only to the High Court
- Contempt of court is of a criminal character and must be proved beyond reasonable doubt
- Knowledge of a court order supersedes the requirement of personal service; personal service may be dispensed with where the party had notice of the order
- Every person against whom a court order is made is under an unqualified obligation to obey it until it is discharged, even if he believes it to be irregular or void
Court orders
#- 1.A warrant of arrest to issue against the Defendant Charles Chisenga Majanja, who is to be arrested forthwith and compelled to appear in court to show cause why he should not be punished for failing to comply with the orders of the court
- 2.The Officer Commanding Mtwapa Police Station directed to effect the orders of the court
- 3.Costs of the application to be borne by the Defendant
- Jurisdiction invoked
- Section 4(2) and Section 14 of the Environment and Land Court Act; Section 5 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ian Paul Hutchinson t/a/ Bahnhof Bar and Restaurant Mtwapa v Charles Chishenga Majanja [2017] KEELC 2173 (KLR)", Case Analysis (2017). Application dated 20th December 2016 (in the suit filed 5th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2173/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.