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ELCPartially AllowedELC Civil Suit (Nairobi) – plaint dated 6/7/2015; Notice of Motion dated 19/7/2017· [2018] KEELC 4452 (KLR)

Registered Trustees of Sheikh Zayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Ltd & 4 others [2018] KEELC 4452 (KLR)

Environment and Land Court
16 February 2018
5,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A pension scheme trustee and its CEO were held in contempt for issuing a licence over land protected by a court order, and that licence gave nobody any legal rights.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court, Nairobi (Eboso J) on a Notice of Motion dated 19/7/2017 by the 1st defendant, Pelican Engineering & Construction Limited, seeking contempt findings and sanctions against 18 respondents connected with the 5th defendant, the Trustees of Kenya Railways Staff Retirement Benefits Scheme, in a land dispute over LR No 209/11552, Upper Hill, Nairobi. Three parties claim ownership of the parcel, and a preservatory order issued by Gacheru J on 21/7/2015, restraining all parties from dealings in the suit property, remained in force. The court framed four issues: whether the preservatory order bound all respondents; whether they were aware of it; whether any committed contempt under Section 4 of the Contempt of Court Act, 2016; and whether the licence issued on 22/3/2017 conferred valid rights. The court held that the order bound the 5th defendant from joinder on 18/11/2015 and that non-parties are bound under Section 4(2) of the Act once aware of an order. It found the 5th defendant and its CEO, Simon Nyakundi, guilty of contempt for issuing a temporary occupation licence to Jabavu Village Limited while the order subsisted, holding that the licence conferred no contractual rights and that all resultant interests were nullities, applying the dictum in Clarke v Chadburn. The remaining respondents were not found guilty for want of evidence of awareness. The court declined to grant the mandatory injunctive prayers as framed and directed the contemnors to attend for mitigation, ordered vacating of the property within two days with forced eviction in default, and awarded costs to the 1st defendant against the 5th defendant and Simon Nyakundi.

Key legal issues

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01

Whether non-parties are bound by preservatory orders

Holding

The order bound the 5th defendant upon joinder and reaffirmation on 18/11/2015; other persons are bound under Section 4(2) of the Contempt of Court Act upon service or awareness

Reasoning

The court found the order of 21/7/2015 was directed to parties to the suit and reaffirmed after the 5th defendant was enjoined, so it could not be said the 5th defendant was not bound. Section 4(2) of the Contempt of Court Act broadens liability to any person whose wilful act interferes with the due process of justice or lowers the authority of the court, but the baseline is knowledge of the order.

p. 7
02

Whether contempt was proved against the respondents

Holding

Only the 5th defendant and Simon Nyakundi were guilty of contempt for issuing the licence to Jabavu Village Limited on 22/3/2017

Reasoning

The preservatory order forbade further dealings in the suit property. Issuance of the temporary occupation licence was a dealing in the suit property done while the order subsisted. The other respondents were not shown to have been aware of the order at the material time, and without that crucial evidence no finding of contempt could be made against them.

p. 7
03

Validity of rights created in contempt of court

Holding

The licence issued in breach of the preservatory order conferred no recognised contractual rights and all resultant interests are nullities

Reasoning

Adopting the Privy Council dictum in Clarke v Chadburn, the court held that those who defy a court prohibition cannot claim the fruits of their defiance are valid. The licence was an illegality and remains one; all rights accruing from it, whether of the direct or indirect recipients, are nullities in law.

p. 7

Legal principles established

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  • Any wilful act by a non-party that interferes with, obstructs or interrupts the due process of the administration of justice constitutes contempt of court, provided the non-party was aware of the order or court matter
  • A transaction executed in breach of a subsisting court order is a nullity and confers no enforceable rights on its beneficiaries
  • Since the Contempt of Court Act, 2016, Kenyan courts are no longer bound by English statutes, practice and jurisprudence on contempt

Court orders

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  1. 1.The Trustees of Kenya Railways Staff Retirement Benefits Scheme (5th defendant) and its Chief Executive Officer Simon Nyakundi shall attend court in person on Friday 23/2/2018 at 11:00 am to mitigate before punishment is pronounced under the Contempt of Court Act
  2. 2.The 5th defendant and Simon Nyakundi to file affidavits within five days setting out the measures taken to purge the contempt
  3. 3.All respondents and any other person occupying the suit property in contravention of the preservatory order to vacate the suit property within two days, failing which the Police Commander in Charge of Nairobi County shall enforce the preservatory order through forceful eviction at the instance of the 1st defendant
  4. 4.Costs of the contempt motion awarded to the 1st defendant against the 5th defendant and the 2nd respondent in the contempt motion
  5. 5.Directions that parties file single bound, paginated and indexed bundles of pleadings, witness statements and evidentiary documents within 30 days and a joint summary of key issues within 30 days

Authorities

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Legislation

  • Contempt of Court ActSections 3, 4, 4(2), 5(b), 28, 24(2), 29
  • Judicature Act (Cap 8)Section 5
  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure Rules, 2010Order 40 rules 3 and 10

Cases cited (5)

  • Teachers Service Commission Vs Kenya National Union of Teachers and 2 Others
    [2013] eKLR
  • Africa Management Communication International Ltd. Vs Jospeh Mathenge Mugo and another
    [2013] eKLR
  • Econet Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another
    (2005) eKLR
  • Hadkison Vs Hadkison
    (1952) and All ER 567
  • Clarke and Others Vs Chadburn & Others
    (1985) ALL ER (PC) 211
Jurisdiction invoked
Sections 3, 4, 5(b), 28 and 24(2) of the Contempt of Court Act, 2016; Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 40 rules 3 and 10 of the Civil Procedure Rules, 2010

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, "Registered Trustees of Sheikh Zayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Ltd & 4 others [2018] KEELC 4452 (KLR)", Case Analysis (2018). ELC Civil Suit (Nairobi) – plaint dated 6/7/2015; Notice of Motion dated 19/7/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4452/eng@2018-02-16

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