Fadumo Muhamud Hersi v Patrick Kangethe & Sons [2017] KEELC 2631 (KLR)
The bottom line
#The High Court dismissed the application because the order only protected Shop No. 1, construction elsewhere on the property wasn't a breach, and no leave is needed to start contempt proceedings in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave of the court is necessary before instituting contempt of court (committal) proceedings against the Defendant
- 2.Whether the construction works on L.R No. 36/VII/449 should be restrained as being undertaken in breach of the order of 17th June 2016
Key legal issues
#Whether leave is required to commence contempt proceedings
Leave is not required; the English contempt procedure applicable in Kenya before the Contempt of Court Act 2016 required no leave for committal for breach of a judgment or order
The alleged contempt arose from alleged breach of the injunction of 17th June 2016. The application was brought under section 5 of the Judicature Act before the Contempt of Court Act 2016. The English Contempt of Court Act 1981 and Part 81 of the CPR (Amendment No. 2) Rules 2012, which regulated contempt in Kenya before 2016, require no leave to institute committal proceedings for breach of a judgment or order.
Whether construction on L.R No. 36/VII/449 should be stopped
No; the injunction of 17th June 2016 only restrained parting with possession of or leasing out Shop No. 1, not demolition or construction on the wider parcel, and no breach was demonstrated
The court order was limited to Shop No. 1 and did not restrain demolition or construction on the whole parcel. The plaintiff also failed to verify whether the Defendant still owned the land or was undertaking the construction; a title search would have sufficed. Without conclusive committal findings, the court was not persuaded the works breached the order.
Legal principles established
#- Under the Contempt of Court Act of England 1981 and Part 81 of the Civil Procedure (Amendment No. 2) Rules 2012, applicable in Kenya prior to the Contempt of Court Act 2016, leave is not necessary to institute committal proceedings for breach of a judgment or order
- An injunction applicant seeking to restrain works as a breach of a court order must show the works are undertaken by the respondent and are in breach of the order
- A party alleging a change in ownership of land should verify by an official search on the title
Court orders
#- 1.The Notice of Motion dated 3rd October 2016 is dismissed
- 2.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the High Court; application brought under Section 5 of the Judicature Act, Chapter 8 Laws of Kenya
Relief refused
#Leave to institute contempt of court proceedings against the Defendant
Under the pre-2016 English contempt rules applicable in Kenya, leave is not necessary to institute committal proceedings for breach of a judgment or order
Order restraining the Defendant from carrying out or continuing construction on L.R No. 36/VII/449
The court order of 17th June 2016 did not restrain demolition or construction on the parcel; no evidence the construction breached the order; no evidence the Defendant was carrying out the works
Order directing the Nairobi County Commissioner of Police to ensure compliance
Fell with the principal prayers as the application was found to have no merit
Costs
Costs to be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Plaintiff was in the circumstances not required to seek leave of this court before instituting committal proceedings against the Defendant. That finding disposes of the first limb of the Plaintiff’s application.
I am not persuaded that the construction works sought to be stopped are being undertaken in breach of the court order which was made herein on 17th June 2016.
The upshot of the foregoing is that the Notice of Motion dated 3rd October 2016 has no merit. The same is dismissed with costs to be in the cause.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fadumo Muhamud Hersi v Patrick Kangethe & Sons [2017] KEELC 2631 (KLR)", Case Analysis (2017). Notice of Motion dated 3rd October 2016 in suit filed 14th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2631/eng@2017-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.