Registered Trustees of Sheikh Zayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Ltd & 4 others [2018] KEELC 4452 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether non-parties are bound by preservatory orders
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
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.
Whether contempt was proved against the respondents
Only the 5th defendant and Simon Nyakundi were guilty of contempt for issuing the licence to Jabavu Village Limited on 22/3/2017
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.
Validity of rights created in contempt of court
The licence issued in breach of the preservatory order conferred no recognised contractual rights and all resultant interests are nullities
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.
Legal principles established
#- 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
#- 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.The 5th defendant and Simon Nyakundi to file affidavits within five days setting out the measures taken to purge the contempt
- 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.Costs of the contempt motion awarded to the 1st defendant against the 5th defendant and the 2nd respondent in the contempt motion
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.