Mohammed Peissal Mohamud & 2 others v Richard Guya Membo & 2 others [2017] KEELC 2841 (KLR)
The bottom line
#A Kenyan court dismissed both sides' applications, confirming consent orders are hard to change and contempt must be proven with solid, detailed evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant could obtain injunctive relief against collection of rent by the Plaintiffs
No; the relief sought contradicted the consent order of 13th April 2016 which incorporated the Kisumu CMCC No. 110 of 2016 order restraining interference with the applicant's occupation, business operations and management of the suit properties, and no basis for varying the consent order was established.
The consent order recorded on 13th April 2016 adopted the order issued in Kisumu CMCC No. 110 of 2016, which restrained the respondents (including the 1st Defendant as 5th Respondent) from trespassing into or interfering with the applicant's peaceful occupation, tenants' businesses and management of the properties. Rent collection is an integral element of management. To vary a consent order the applicant must prove fraud, collusion, agreement contrary to policy, or lack of sufficient material facts; none was established, so the application lacked merit.
Whether the 1st and 3rd Defendants were in contempt of the court orders of 13th and 20th April 2016
No; contempt was not proved beyond reasonable doubt because the supporting affidavit lacked particulars of the alleged threats and there was no corroborating evidence from any threatened tenant.
The court accepted, following cited authorities, that a party seeking committal for contempt must avail evidence and prove disobedience beyond reasonable doubt. The 3rd Plaintiff's affidavit gave no details of the nature of the threats attributed to the 1st and 3rd Defendants, and there was no affidavit evidence from any tenant alleged to have been threatened to corroborate the deposition. The contempt application and the prayer to deny the Defendants audience therefore failed.
Legal principles established
#- A party seeking to set aside or vary a consent order must prove fraud, collusion, agreement contrary to public policy, or that the consent was given without sufficient material facts or through misrepresentation or ignorance of material facts.
- An applicant seeking punishment for contempt of a court order must avail evidence and prove the disobedience beyond reasonable doubt.
- Collection of rent forms part of the management of property and is within an injunction restraining interference with management of the property.
Court orders
#- 1.The notices of motion dated 22nd June 2016 and 17th February 2017 are both dismissed
- 2.Each party to bear their own costs of the two applications
- Jurisdiction invoked
- Original civil suit jurisdiction of the Environment and Land Court (not expressly stated in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Peissal Mohamud & 2 others v Richard Guya Membo & 2 others [2017] KEELC 2841 (KLR)", Case Analysis (2017). Not indicated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2841/eng@2017-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.