John Elias Kirimi v Martin Maina Nderitu & 4 others [2017] KEELC 3261 (KLR)
The bottom line
#A Kenyan court refused to jail a landowner for contempt because the injunction order was never served and the breach was not clearly proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the interim orders of 27th February 2012 lapsed under Order 40 Rule 6
The orders did not lapse because they were expressed to last until hearing and determination of the suit or further orders
Order 40 Rule 6 provides that interlocutory injunctions lapse twelve months after grant unless for sufficient reason the court orders otherwise. Here the court's order of 27th February 2012 was expressly to last pending the hearing and determination of the suit or until further orders. The court therefore adopted the plaintiff's submission that the rule did not apply and declined to follow the authorities cited by the 3rd defendant holding such orders lapse automatically.
Whether contempt was proved despite absence of personal service and lack of particulars
Contempt was not proved; the plaintiff failed to show knowledge of the order or to particularise the contemptuous acts
Although personal service may be dispensed with where knowledge is shown, the plaintiff adduced no evidence that the 3rd defendant knew of the order. Further, the acts of contempt were pleaded in general terms: no evidence showed the stage of construction when the order issued or when the further construction occurred, and the photographs did not assist. The standard of proof, being above balance of probabilities, was not met.
Legal principles established
#- Interlocutory injunctions lapse automatically after twelve months under Order 40 Rule 6 unless the court orders otherwise, but orders expressed to last until hearing and determination of the suit or further orders do not lapse by operation of law
- The strict requirement for personal service of an order in contempt proceedings may be dispensed with where the contemnor acted with full knowledge or notice of the order
- The standard of proof in contempt proceedings is more than a balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.The plaintiff's Notice of Motion dated 16th October 2015 is dismissed
- 2.Costs of the application awarded to the 3rd defendant
- Jurisdiction invoked
- Original civil jurisdiction over the suit and contempt application in pending proceedings (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Elias Kirimi v Martin Maina Nderitu & 4 others [2017] KEELC 3261 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3261/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.