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ELCDismissedNot stated in the judgment extract (main suit concerning L.R. No. 13416, Embakasi)· [2017] KEELC 3307 (KLR)

Embalands Investments Ltd v David Oloo Miruka & 4 others [2017] KEELC 3307 (KLR)

Environment and Land Court
24 January 2017
SOS. Okong'o
3,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling by S. Okong'o J of the Environment and Land Court, Nairobi, on an amended Notice of Motion dated 28th April 2015 by the 1st and 3rd Defendants seeking contempt findings and consequential relief against the Plaintiff and its directors, Yuvinalis Nyabuto Omosa and Beatrice Nyambura Kariuki, for allegedly breaching a status quo order made by Mutungi J on 28th August 2014 restraining any sale, transfer, disposal or construction on Plot No. 13416, Embakasi. The applicants alleged the plaintiff invaded the suit property in August 2014, burnt and demolished structures and commenced construction, and sought police enforcement, an injunction, security of Kshs.100,000, imprisonment of the directors for six months, and demolition/restoration orders. The plaintiff and the alleged contemnors opposed, denying service and knowledge of the order, disputing ownership and even the existence of L.R. No. 13416 following subdivision, and contending the alleged breaches preceded the order. The court applied the settled standard that contempt must be proved almost beyond reasonable doubt (Mutitika v Baharini Farm Ltd) and that knowledge of the order, not necessarily personal service, is required. It held the applicants failed on every element: the alleged breaches predated the order; the directors, who were not parties, could not be fixed with knowledge through the plaintiff's advocate; and the photographic evidence did not establish who committed the acts, where, or on the suit property. The application was dismissed with costs to the respondents.

Key legal issues

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01

Temporal impossibility of the alleged contempt

Holding

The alleged contemnors could not have disobeyed an order made on 28th August 2014 by acts committed on 2nd and 7th August 2014

Reasoning

The grounds and supporting affidavit alleged breaches on 2nd August 2014 and 7th August 2014, yet the order allegedly breached was made on 28th August 2014. The court agreed with the respondents that breach of a non-existent order cannot constitute contempt, independently undermining the application.

p. 4
02

Knowledge and service of the order as prerequisites for contempt

Holding

Personal service is not a condition precedent, but knowledge by the alleged contemnor must be proved; it was not

Reasoning

While accepting the applicants' authority that personal service is no longer mandatory, the court held the burden lay on the applicants to show the directors knew of the order. The advocate's presence in court sufficed only for the plaintiff as a legal entity, not for the directors personally, who were not parties to the suit when the order was made.

p. 4
03

Sufficiency of photographic evidence to prove breach

Holding

Photographs alone could not establish who committed the acts, where, or whether they were on the suit property

Reasoning

The court found that apart from photographs showing demolished structures and ongoing construction, no evidence identified the actor, the person carrying out construction, or the property. The respondents denied the acts occurred on L.R. No. 13416, which they claimed no longer existed after subdivision.

p. 5

Legal principles established

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  • An applicant seeking punishment for contempt must establish that the alleged contemnor knew of the order, whether through service or other sources, and disobeyed it
  • The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
  • Officers of a body corporate are liable for the company's contempt only where the order was brought to their attention in their capacity as officers and they defied it
  • Awareness of a court order by a company's advocate does not deem the company's directors aware of the order

Court orders

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  1. 1.The amended Notice of Motion dated 28th April 2015 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Rules of the Supreme Court of EnglandOrder 52

Cases cited (4)

  • Mutitika -vs- Baharini Farm Ltd
    (1985) KLR 227
  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 others
    (2014) eKLR
  • Shimmers Plaza Ltd. vs. National Bank of Kenya Ltd.
    (2015) eKLR
  • Gatimu Farmers Company vs. Geoffrey Kagiri Kimani & Others
    (2005) eKRL
Jurisdiction invoked
Inherent jurisdiction to punish for contempt of court orders (contempt application under the court's powers; respondents invoked Order 52 of the Rules of the Supreme Court of England)

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, "Embalands Investments Ltd v David Oloo Miruka & 4 others [2017] KEELC 3307 (KLR)", Case Analysis (2017). Not stated in the judgment extract (main suit concerning L.R. No. 13416, Embakasi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3307/eng@2017-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.