Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNotice of Motion dated 29th November 2017 (Tribunal Case No. 69 of 2016, Business Premises Rent Tribunal, Nairobi)· [2018] KEELC 2918 (KLR)

Gilbert Otieno & another v Bernard Mushivoji & another [2018] KEELC 2918 (KLR)

High Court of Kenya
14 June 2018
COChristine Ochieng
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

You cannot enforce a rent tribunal order through contempt proceedings in Kenya until it has first been adopted as a decree by a Magistrates' Court.

What this practically means

#

Executive summary

#
The Applicants, complainants in Business Premises Rent Tribunal Case No. 69 of 2016 concerning Shop No. 8, Kemms Apartment in Kitengela, moved the High Court by Notice of Motion dated 29th November 2017 seeking the committal of the Respondents to civil jail for contempt of Tribunal orders issued on 16th November 2016, 12th January 2017 and 21st April 2017. They alleged the Respondents evicted them, demolished the premises, carried away their goods and blocked the entrance despite service of the orders. The Respondents filed a preliminary objection asserting the court lacked jurisdiction, that the application relied on repealed provisions, and that no landlord-tenant relationship existed; the 1st Respondent also denied personal liability as director of the 2nd Respondent company and denied breach or service. The court framed two issues: its jurisdiction and whether the Respondents were in contempt. It set out the elements of civil contempt as summarised in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi and noted section 28(1) of the Contempt of Court Act. However, turning to section 14(1) of Cap 301, it held that Tribunal orders must first be filed in the Magistrates' Court, adopted and a decree extracted before enforcement, including contempt proceedings. Persuaded by Travel Planners Ltd v Managing Director, Kenya Railways Corporation, it found the proceedings premature regardless of leave granted, struck out the application, directed the Applicants to adopt the orders at the Magistrates' Court first, and made no order as to costs.

Key legal issues

#
01

Jurisdiction to entertain contempt proceedings founded on Tribunal orders

Holding

The court lacked a competent basis to punish for contempt because the Tribunal orders had not been adopted as decrees of the Magistrates' Court under section 14(1) of Cap 301; the application was premature and was struck out.

Reasoning

Section 14(1) of the Landlord and Tenant (Business Premises) Act (Cap 301) requires a certified copy of a Tribunal order to be filed in a competent subordinate court of the first class and served before it may be enforced as a decree. The Applicants sought committal on Tribunal orders not yet adopted. The court was persuaded by Travel Planners Ltd and held that leave to commence contempt proceedings was immaterial where the adoption step had not been taken.

p. 3
02

Elements of civil contempt

Holding

The court noted the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi: clear and unambiguous order binding on the defendant; knowledge or notice; breach; and deliberate conduct.

Reasoning

The court recited the standard of proof for civil contempt as higher than in civil cases and set out the four elements from Contempt in Modern New Zealand as adopted by Mativo J. However, having found the application premature for want of adoption of the Tribunal orders, it did not make findings on whether those elements were established on the facts.

p. 3

Legal principles established

#
  • Orders of the Business Premises Rent Tribunal must first be filed in a competent subordinate court for adoption as a decree before contempt or other enforcement proceedings may be brought

Court orders

#
  1. 1.The application dated 29th November 2017 is struck out with no order as to costs
  2. 2.The Applicants are directed to first file the three Orders of the Business Premises Rent Tribunal at the Magistrates' Court for adoption and extraction of the Decree, after which they can apply for the Respondents to be cited for contempt

Authorities

#

Legislation

  • Judicature Actsection 5(1)
  • Rules of the Supreme Court of England 1965Order 32
  • Civil Procedure Actsections 1A, 1B and 3A
  • Contempt of Court Actsection 5(b), section 27(b), section 28(1)
  • Landlord and Tenant (Business Premises) Act (Cap 301)section 14(1)

Cases cited (8)

  • Kyoga Hauliers v Long Distance Truck Drivers & Allied Workers Union
    (2015) eKLR
  • Attorney General & Another v Andrew Maina Githinji & Anor
    (2016) eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors
    [1969] 696
  • Shimmers Plaza Ltd v NBK
    [2015] eKLR
  • Leila Kavemba & 2 Others v Said Suleiman
    [2017] eKLR
  • Travel Planners Ltd v Managing Director, Kenya Railways Corporation & Anor
    (2008) KLR
  • Woburn Estate Limited v Margaret Bashford
    Civil Appeal No. 18 of 2015 (2016) eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act, section 5(b) of the Contempt of Court Act, sections 1A, 1B and 3A of the Civil Procedure Act; enforcement provision section 14(1) of the Landlord and Tenant (Business Premises) Act (Cap 301)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gilbert Otieno & another v Bernard Mushivoji & another [2018] KEELC 2918 (KLR)", Case Analysis (2018). Notice of Motion dated 29th November 2017 (Tribunal Case No. 69 of 2016, Business Premises Rent Tribunal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2918/eng@2018-06-14

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