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ELCDismissedNot indicated in the ruling· [2017] KEELC 2841 (KLR)

Mohammed Peissal Mohamud & 2 others v Richard Guya Membo & 2 others [2017] KEELC 2841 (KLR)

Environment and Land Court
24 May 2017
1,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court (S.M. Kibunja, Judge) disposes of two interlocutory applications in a land dispute over Kisumu Municipality/Block 7/275 and 276. The first, dated 22nd June 2016, was filed by Ramogi Chemist Limited (described as 1st defendant but actually the 3rd Defendant) and supported by Richard Guya Membo, the 1st Defendant; it sought an injunction restraining the Plaintiffs from collecting rent from tenants on the suit properties, with the rent instead to be collected by the Defendant or deposited in a joint account in the names of counsel for the parties. The second, dated 17th February 2017, was filed by the 2nd and 3rd Plaintiffs and sought committal of the 1st and 3rd Defendants for contempt of the court orders of 13th and 20th April 2016, by committal to jail, fine, or sequestration, and denial of audience until they purged the contempt. The court consolidated the two applications into one ruling. It held that the 1st Defendant's application was at variance with the consent order of 13th April 2016, which adopted the order in Kisumu CMCC No. 110 of 2016 restraining interference with the Plaintiffs' occupation, tenants' businesses and management of the properties; rent collection being integral to management, and no ground for varying a consent order (fraud, collusion, insufficiency of material facts or misrepresentation) having been established, that application failed. The contempt application failed because disobedience was not proved beyond reasonable doubt: the 3rd Plaintiff's affidavit lacked particulars and corroborating tenant evidence. Both applications were dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the 1st Defendant could obtain injunctive relief against collection of rent by the Plaintiffs

Holding

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.

Reasoning

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.

p. 3
02

Whether the 1st and 3rd Defendants were in contempt of the court orders of 13th and 20th April 2016

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notices of motion dated 22nd June 2016 and 17th February 2017 are both dismissed
  2. 2.Each party to bear their own costs of the two applications

Authorities

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Cases cited (4)

  • Kenya Commercial Bank Limited –V- Specialized Engineering Company Ltd
    [1982] KLR 485
  • SamNyamweya & 3 others –V- Kenya Premier League Limited
    [2015] eKLR
  • Shimmers Plaza Limited –V- National Bank of Kenya
    [2015] eKLR
  • Caroline Wairimu Wanjihia & Another -V- I & M Bank Limited & Another
    [2015] eKLR
Jurisdiction invoked
Original civil suit jurisdiction of the Environment and Land Court (not expressly stated in the ruling)

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, "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.