Truphena Mena & 5 others v Bonventure A. Omuse [2019] KEELC 1351 (KLR)
The bottom line
#A Kenyan court convicted a landlord of contempt for ignoring a court order, confirming that knowing about an order matters more than being personally served.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants had locus standi despite the Tribunal's later finding of no tenancy relationship
The applicants had locus standi because the Tribunal orders relied on by the respondent were issued after the order said to have been disobeyed.
The Tribunal orders annexed were issued between 3/6/2019 and 4/6/2019, long after the 11/5/2019 order alleged to have been disobeyed. Since the contempt concerned conduct at the time of the court order, the later termination of the landlord-tenant relationship could not deprive the applicants of standing to bring contempt proceedings.
Whether reliance on the repealed/unconstitutional Contempt of Court Act 2016 vitiated the application
No; the application was also grounded on Order 40 rule 3 of the Civil Procedure Rules and the court's inherent common law power, and Order 50 rule 10 and Article 159(2)(d) cure procedural defects.
The Contempt of Court Act 2016 had been declared unconstitutional in the KHRC case, but the motion was also brought under Order 40 rule 3, which entitles applicants to similar orders. The court's common law power to punish contempt survives, Order 50 rule 10(1) and (2) bars objections based on failure to cite the correct provision, and Article 159(2)(d) requires justice without undue regard to technicalities.
Whether a valid order existed and whether the respondent had knowledge of it
A valid restraining order was made on 10/5/2019, and service on the respondent's wife coupled with a telephone conversation with the respondent established knowledge.
The order of 10/5/2019 restrained the respondent from interfering with the applicants' possession of Plot No. 2116/IV/26. The process server's affidavit showed service on Dorothy Omuse, the respondent's wife, who telephoned the respondent and allowed the process server to speak to him, whereupon he directed that documents be left with her. These facts were uncontroverted, convincing the court of the respondent's awareness.
Whether the respondent violated the order and whether the public health notices justified his conduct
The order was wilfully violated; the public health notices were no justification, and the applicants' departure from the premises was caused by the respondent's own conduct amounting to constructive eviction.
The respondent never deponed to stopping the renovation works and instead sought to justify them by the County Government health notice, which the court held could not override a court order nor automatically terminate tenancies. The court found beyond reasonable doubt that the applicants had not voluntarily vacated but were prompted to abandon the premises by the respondent's activities, despite the interim orders.
Legal principles established
#- Knowledge of a court order supersedes the requirement of personal service; a party who acts with knowledge of an order may be held in contempt even without proof of personal service.
- A court of equal status to the High Court (such as the Environment and Land Court) has power to punish for contempt under section 5(1) of the Judicature Act.
- An application is not defeated merely because it cites a repealed or unconstitutional statute where another valid basis, such as Order 40 rule 3 of the Civil Procedure Rules, is relied upon; substance prevails over form.
- Compliance with a statutory notice from a public health department does not justify disobeying a subsisting court order; only setting aside of the order by the court or an appellate court would entitle a party to disregard it.
Court orders
#- 1.The respondent is guilty of contempt of court and is convicted accordingly
- 2.The respondent shall appear before the court personally for mitigation and sentencing on 1st October 2019 at 9.00 a.m.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (contempt powers equivalent to the High Court, the court being of equal status); Order 40 rule 3 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Truphena Mena & 5 others v Bonventure A. Omuse [2019] KEELC 1351 (KLR)", Case Analysis (2019). Application dated 20/5/2019 (arising from BPRT No. 6, 7, 8, 9, 10 and 11 of 2018/2019, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1351/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.