Neptune Credit Management Ltd & another v Jigisha P. Jani & another [2017] KEELC 3772 (KLR)
The bottom line
#A Kenyan High Court dismissed a tenant's applications, holding that consent orders bind both parties and contempt claims need solid evidence of non-compliance.
What this practically means
#Executive summary
#Key legal issues
#Defect of the application dated 6th August 2014 for citing wrong provisions
The application is not defective; the wrong citation of provisions did not affect the substance and can be cured under Section 100 of the Civil Procedure Act and Article 159(2)(d) of the Constitution
The application was brought under Order 22 Rules 51 and 52, which concern objections to attachment in execution of a decree. The 2nd Plaintiff invoked Section 100 of the Civil Procedure Act and Order 51 of the Rules to cure the defect. Applying Order 51 Rule 10(2) and Article 159(2)(d) on procedural technicalities, the Court held the failure to invoke the correct provisions had not affected the substance of the application.
Contempt of the Consent Order of 19th April 2010
The Defendants are not in contempt; the alleged distress was authorised by the Court Order of 14th December 2011 permitting distress in default of payment of the monthly rent
The Court reviewed the record and confirmed that on 14th December 2011 the Court directed the Plaintiffs to continue paying monthly rent of Kshs.181,500/= and, in default, the Defendants to levy distress. Since the Defendants asserted rent arrears and the Plaintiffs produced no evidence of compliance or of Defendants' breach, the essential element of non-compliance with an order was absent.
Variation of the Consent Order to have instalments paid into court
Prayer refused; consent orders bind the parties and can only be varied with the consent of all parties or on grounds justifying variation or rescission of a contract
The Defendants had not consented to the variation, and the 2nd Plaintiff laid no basis for it. Relying on Al Jalal Enterprises v NIC Bank Ltd, the mode of paying the debt is part of the consent judgment and the Court cannot interfere with it except on grounds that would justify varying or rescinding a contract between the parties. No such ground was alleged.
Duplication of applications and abuse of process
The application dated 13th July 2015 was stayed and the application dated 14th August 2015 dismissed as barred by Section 6 of the Civil Procedure Act, the former duplicating the application of 6th August 2014 and the latter duplicating orders already obtained in Misc. Application No. 495 of 2015
The 13th July 2015 application sought the same prayers as the still-pending 6th August 2014 application. The 14th August 2015 application sought return of distrained goods, relief already obtained from the Chief Magistrate's Court in Misc. Application No. 495 of 2015, which the Plaintiffs did not dispute. Section 6 bars parallel proceedings on the same issue between the same parties.
Novation of the lease by the Sale Agreement
Not determined at the interlocutory stage; left for the trial court after viva voce evidence
The Plaintiffs contended the Sale Agreement of 26th June 2008 novated the Lease Agreement of 12th February 2008, while the Defendants maintained the Sale Agreement was rescinded for non-payment. The Court found this contested issue requires evidence from witnesses at the full trial and could not be resolved on the applications.
Doctrine of lis pendens
Not applicable at this stage as there is no evidence the Defendants intend to dispose of or alienate the suit property
The Plaintiffs invoked lis pendens to restrain dealings with the suit property, but the bone of contention was the levying of distress, not transfer of title. Absent evidence of intended disposition or alienation, the doctrine had no application to the interim applications.
Legal principles established
#- For a party to be cited for contempt there must be evidence of non-compliance with a court order
- Consent orders may only be varied by consent of all the parties, absent grounds that would justify varying or rescinding a contract
- An application shall not be defeated on a technicality or want of form that does not affect its substance
- Section 6 of the Civil Procedure Act bars a court from proceeding with a suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit or proceeding between the same parties
Court orders
#- 1.The Notice of Motion dated 6th August 2014 is dismissed entirely with costs to the Defendants/Respondents
- 2.The Notice of Motion dated 13th July 2015 is stayed pursuant to Section 6 of the Civil Procedure Act
- 3.The Notice of Motion dated 14th August 2015 is dismissed entirely with costs to the Defendants/Respondents
- 4.Matter to be set down for hearing of the main suit on priority basis
- Jurisdiction invoked
- Civil Procedure Act (Sections 1A, 1B, 3A, 100) and Civil Procedure Rules 2010 (Orders 22, 40, 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Neptune Credit Management Ltd & another v Jigisha P. Jani & another [2017] KEELC 3772 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3772/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.