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ELCAllowed· [2019] KEELC 3856 (KLR)

Ahif M Gulam v Estate of Roshan Hasanali Kassam Shivji & 10 others [2019] KEELC 3856 (KLR)

High Court of Kenya
3 April 2019
LKL. Komingoi
1,441 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15th April 2014 (amended 2nd July 2014) in which the plaintiff, Ashif Gulam, sought a declaration that the 2nd defendant, Nizar Kassam, was in contempt of a consent order recorded on 10th July 2013, together with committal, payment of arrears, a fine, sequestration and police assistance in enforcement. The consent order required the 2nd defendant to remit 23% of the total monthly rental income collected from LR No. 209/665, Tom Mboya Street, Nairobi, to the plaintiff's advocates effective 30th July 2013, among other terms. The plaintiff asserted only Kshs 22,788/- had been paid, leaving Kshs.563,528/- due by April 2014, accruing at Kshs.58,631.60 monthly. The 2nd defendant denied contempt, claiming he had remitted the monies but the plaintiff declined to accept them, and contended there was no proof he was served with the order. L. Komingoi J framed one issue: whether the 2nd defendant was in breach of the court order and should be punished for contempt. The court held that the consent order bound the 2nd defendant, who was represented when it was recorded and admitted it in his replying affidavit, so he could not deny knowledge. The burden of showing compliance lay on him; he failed to attach proof of rejected payments, failed to demonstrate compliance with order No. 2 of the consent, and offered no reasonable explanation for the default, warranting a finding of wilful disobedience. Applying the dictum in Awadh vs Murumbi on the duty to obey court orders, the court declared the 2nd defendant in contempt, ordered payment of Kshs.563,528/- plus Kshs.58,631.60 per subsequent month within sixty days, fined him Kshs.50,000/- or six months' civil jail in default, directed police assistance in enforcement, and ordered costs in the cause.

Key legal issues

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01

Whether the 2nd defendant was in contempt of the consent order of 10th July 2013 requiring him to remit 23% of monthly rental income from the suit property

Holding

The 2nd defendant was in contempt; he failed to demonstrate compliance with order No. 1 of the consent and offered no reasonable explanation for the non-compliance.

Reasoning

The consent order of 10th July 2013 required the 2nd defendant to remit 23% of total monthly rental income from LR No. 209/665, Tom Mboya Street, to the plaintiff's advocates. The plaintiff asserted only Kshs 22,788/- had been paid against Kshs.563,528/- due by April 2014. The 2nd defendant claimed he had remitted the money but the plaintiff declined to accept it, yet failed to attach evidence of the rejected payments. Being a party to the consent, he could not deny knowledge of the order, and the burden of proving compliance lay on him, which he failed to discharge.

p. 3
02

Whether the 2nd defendant's contention that he was not served with the court order excused the non-compliance

Holding

The service objection failed because the order was a consent order recorded with his participation and he admitted its existence in his replying affidavit.

Reasoning

The respondent argued there was no evidence he was served with the order. The court held that the order was entered by consent, that he was represented by counsel when it was recorded, and that he admitted in his replying affidavit that a consent order was entered on 10th July 2013. Knowledge of the order was therefore not in issue and the absence of formal service did not assist him.

p. 3

Legal principles established

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  • A party who was present or represented when a consent order was made cannot deny knowledge of it; the burden lies on such a party to demonstrate compliance with the order.
  • Where a party fails to comply with a court order without a reasonable explanation, the court may conclude that the non-compliance was wilful and punish it as contempt.

Court orders

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  1. 1.Declaration that the 2nd defendant/respondent is in contempt of the court order issued by consent on 10th July 2013
  2. 2.The 2nd defendant to pay the plaintiff's advocates Kshs563,528.00 due as at April 2014 and Kshs.58,631.60 every subsequent month, within sixty (60) days from the date of the ruling
  3. 3.The 2nd defendant is fined Kshs.50,000/- or to be committed to civil jail for six (6) months
  4. 4.The Officer in Charge Parklands Police Station and/or the court bailiff to assist in the enforcement of the orders
  5. 5.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure RulesOrder 40 rules (2) and (3)
  • Interpretation and General Provisions ActSection 33

Cases cited (3)

  • Awadh vs Murumbi
    Bungoma HC Misc. Application No. 53 of 2014; also cited as KLR [2004] 458
  • Africa Management Communication International Limited vs Joseph Mathenge Mugo & Another
    [2013] eKLR
  • Mwangi Wangondu vs Nairobi City Commissioner
    Civil Appeal No. 59 of 1988
Jurisdiction invoked
Sections 3A and 63(c) and (e) of the Civil Procedure Act; Order 40 rules 2 and 3 of the Civil Procedure Rules; Section 33 of the Interpretation and General Provisions Act

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, "Ahif M Gulam v Estate of Roshan Hasanali Kassam Shivji & 10 others [2019] KEELC 3856 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3856/eng@2019-04-03

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