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ELCPartially AllowedELC Case (Nairobi), suit filed 2013; Notice of Motion dated 5/3/2018· [2019] KEELC 4288 (KLR)

Suleiman Murunga v Nilestar Holdings Limited & 5 others [2019] KEELC 4288 (KLR)

Environment and Land Court
25 February 2019
8,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, formerly the 1st and 2nd Defendants' tenant at L.R. No. 209/918 Simmers Restaurant, Kenyatta Avenue, Nairobi, was allotted the Suit Property by the Government in 2011 and thereafter stopped paying rent. After injunction orders of 14/7/2014, extended by consent on 15/12/2016 restraining the Defendants from evicting him pending the hearing of the suit, the Defendants instructed advocate Leo Masore Nyang'au to institute eviction proceedings in the magistrates' court without disclosing this suit. Eviction orders were obtained and the Plaintiff was forcibly evicted in March 2018, his restaurant demolished, after which the Interested Party took a lease and developed the property. The Plaintiff's notice of motion dated 5/3/2018 sought a mandatory injunction reinstating him into possession and the committal of the directors and the advocate for contempt. The court held that where an injunction is extended by consent recorded in court with advocates present, personal service and a penal notice are unnecessary; the directors had notice of the terms and, by instructing the advocate without disclosing the subsisting orders, deliberately disobeyed them and were in contempt. Mr Nyang'au was not personally served and had no knowledge of the orders, so no contempt was found against him, and Madatali Abraham was deceased. The court rejected the argument that Order 40 Rule 6 caused the injunction to lapse, finding the rule consistent with Section 63(c) of the Civil Procedure Act. The mandatory injunction was refused because the property had been materially altered and the substratum removed; instead the directors were ordered to make good the Plaintiff's loss, evidenced by a valuation report, plus six months' rent for relocation, with submissions on quantum. Parties were to fix the suit for hearing within one month, with costs of the application to the Plaintiff against the 1st and 2nd Defendants.

Key legal issues

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01

Whether personal service and a penal notice are prerequisites for contempt founded on a consent order

Holding

They are not, where the party was represented by counsel when the consent was recorded in court; notice of the terms is deemed through the advocate

Reasoning

The consent order of 15/12/2016 was recorded in court before Gacheru J with advocates for all parties present. A party whose advocate enters a consent is taken to know its terms and the consequences of breach. Requiring personal service of the order and a penal notice in such circumstances would ignore the deemed knowledge flowing from representation, so the 1st and 2nd Defendants had proper notice of the clear and unambiguous terms of the consent.

p. 6
02

Whether the directors were in contempt

Holding

Yes - the directors of the 1st and 2nd Defendants (save the deceased Madatali Abraham) disobeyed the orders of 14/7/2014 as extended on 15/12/2016

Reasoning

The directors instructed advocate Nyang'au to institute eviction proceedings in the magistrates' court without disclosing the subsisting injunction orders, and obtained ex parte eviction orders, leading to the Plaintiff's forcible eviction and demolition of the restaurant in March 2018. Non-disclosure of the suit and orders demonstrated an intention to subvert the cause of justice. The advocate himself, however, lacked knowledge and was not personally served, so no finding of contempt was made against him.

p. 6
03

Validity of Order 40 Rule 6 of the Civil Procedure Rules (lapse of injunction after 12 months)

Holding

The rule is valid and consistent with Section 63(c) of the Civil Procedure Act

Reasoning

The court held Rule 6 serves a legitimate purpose: preventing parties from enjoying interim relief indefinitely without progressing their suits. It does not contravene Section 63(c), which gives the court discretion to make just and convenient interlocutory orders, and Rule 7 allows variation or discharge. The Plaintiff's attack on the rule as ultra vires and otiose therefore failed.

p. 7
04

Whether a mandatory injunction restoring the Plaintiff should issue

Holding

No - the remedy was inappropriate because the property had been materially altered

Reasoning

The Plaintiff's restaurant had been demolished and replaced by the Interested Party's car wash, accessory shop and parking yard. Restoration was impractical and the substratum removed, so the court instead chose compensation: the directors to make good the loss, supported by a valuation report, plus six months' rent for relocation, with submissions on quantum to follow.

Legal principles established

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  • A party whose advocate records a consent maintaining an injunction need not be personally served with the order or a penal notice; notice through counsel suffices
  • There is a plain obligation to obey court orders until discharged, even if believed irregular or void
  • The jurisdiction to commit for contempt must be exercised cautiously, with the court first considering other modes of redress
  • No leave is required to file an application citing a party for disobedience of a court order

Court orders

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  1. 1.Declared the directors of the 1st and 2nd Defendants (excluding the deceased Madatali Abraham) to be in contempt of the orders of 14/7/2014 extended by consent on 15/12/2016
  2. 2.Declined to grant the mandatory injunction reinstating the Plaintiff into the Suit Property
  3. 3.Ordered the directors of the 1st and 2nd Defendants to make good the damage and loss suffered by the Plaintiff from the forcible eviction and demolition
  4. 4.Directed the Plaintiff to submit a valuation report within 30 days to the 1st and 2nd Defendants showing the goods, stock, furniture and equipment damaged or lost
  5. 5.Ordered the 1st and 2nd Defendants to pay the Plaintiff a sum equivalent to six months' rent based on the last rent paid, to cater for relocation
  6. 6.Directed the Plaintiff, 1st and 2nd Defendants to file submissions on the financial loss suffered within 14 days of service of the valuation report
  7. 7.Directed parties to fix the main suit for hearing within one month
  8. 8.Awarded the costs of the application to the Plaintiff, borne by the 1st and 2nd Defendants
Jurisdiction invoked
Environment and Land Court Act, Section 29 (contempt jurisdiction); Civil Procedure Act Section 63 and Order 40 of the Civil Procedure Rules

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, "Suleiman Murunga v Nilestar Holdings Limited & 5 others [2019] KEELC 4288 (KLR)", Case Analysis (2019). ELC Case (Nairobi), suit filed 2013; Notice of Motion dated 5/3/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4288/eng@2019-02-25

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