Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2018] KEELC 416 (KLR)

Habiba Ali Mursal & 4 others v Mariam Noor Abdi (Environment and Land Appeal 6 of 2018) (Environment and Land) [2018] KEELC 416 (KLR)

Environment and Land Court
29 November 2018
EOE.O. Obaga
2,944 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Nairobi landlord was found guilty of contempt after demolishing a building despite a court order, because knowing about an order matters even without personal service.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Nairobi (E.O. Obaga, J) deals with two interlocutory applications filed by five appellants who were tenants of Nur Plaza on LR No.36/11/2017, Eastleigh, in an appeal against a Business Premises Rent Tribunal decision ordering them to vacate. Having obtained stay orders, the applicants sought leave to deposit monthly rent into court and an interim injunction restraining the respondent, their landlord, from demolishing the building. On 19th October 2018 the court granted a temporary injunction; on 29th October 2018 the respondent nevertheless demolished the building. The first application failed because the premises had already been demolished and the court had earlier allowed rent deposits; an injunction cannot restrain what has already occurred. On the contempt application, the court applied the well-established elements: a valid, unambiguous order, service or knowledge, and wilful disobedience. Although service was not personal, the order had been left with the respondent's daughter at her house, and following Basil Criticos knowledge supersedes personal service. The consent order from Milimani CMCC No.8798 of 2018 did not authorise demolition and did not bind the applicants. The respondent was found guilty of contempt and directed to appear for mitigation on 19th December at 2.30 pm, failing which she was to be arrested. Summons were to issue to the OCS Pangani, who had been served with the order yet failed to prevent the demolition. Compensation and restoration orders were refused as unquantifiable and unviable; damages, if any, to be pursued in another forum. The respondent was to pay the costs of both applications.

Key legal issues

#
01

Whether the respondent was in contempt of the injunction order of 19th October 2018

Holding

The respondent was guilty of contempt; the elements of a valid order, unambiguity, service/knowledge and wilful disobedience were all proved

Reasoning

The order of 19th October 2018 was valid, clear and unambiguous and was served on the respondent on 24th October 2018. Even absent personal service, the respondent had knowledge, having admitted the order was left with her daughter at her house. Despite this she demolished the building. The consent order from the Chief Magistrates' Court did not authorise demolition and did not bind the applicants, who were not parties to that suit.

p. 3
02

Whether an injunction could issue pending the appeal

Holding

No injunction could issue because the demolition had already occurred

Reasoning

The photographs showed the building's walls demolished, windows removed and the site fenced with iron sheets. An injunction restrains threatened or ongoing conduct, not accomplished facts, so granting one would be futile.

p. 2
03

Whether police officers should be summoned over non-compliance

Holding

The OCS Pangani should be summoned to explain his failure to enforce the order served on him

Reasoning

The order directed the OCS to ensure compliance, and evidence showed police were present during the demolition as the applicants were forced out. Seeking police assistance in enforcement is not uncommon since protection of property is part of their core mandate.

p. 4

Legal principles established

#
  • Knowledge of a court order supersedes the requirement of personal service
  • Every person against whom a court order is made must obey it until it is discharged, even where he believes the order to be irregular or void
  • An injunction restrains threatened or ongoing breaches, not completed acts

Court orders

#
  1. 1.The notice of motion dated 11th October 2018 is not allowed as it has been overtaken by events, but the respondent shall pay the applicants the costs of that application
  2. 2.The respondent is found guilty of contempt of the court order issued on 19th October 2018
  3. 3.The respondent/contemnor is directed to appear in court on 19th December 2018 at 2.30 pm for mitigation, failing which she should be arrested and brought to court
  4. 4.Summons to issue to the OCS Pangani Police Station to appear in court on 19th December 2018 at 2.30 pm to explain why there was no compliance with the court order given on 19th October 2018
  5. 5.The costs of the application dated 30th October 2018 shall be paid by the respondent

Authorities

#

Cases cited (4)

  • Basil Criticos Vs Ala & 8 Others
    (2012) eKLR
  • Wildlife Lodges Ltd vs County Council of Narok and Another
    (2015) 2 EA 344
  • Econet Wireless Kenya Ltd Vs Minister for Information and Communication of Kenya & another
    (2005) eKLR 828
  • Hadkinson Vs Hadkinson
    (1952) ALL ER 567
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Appellate/interlocutory jurisdiction over an appeal from the Business Premises Rent Tribunal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Habiba Ali Mursal & 4 others v Mariam Noor Abdi (Environment and Land Appeal 6 of 2018)  (Environment and Land) [2018] KEELC 416 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/416/eng@2018-11-29

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