Paragon Electronics Ltd & another v Yusuf Sharafally Esufali & another [2020] KEELC 414 (KLR)
The bottom line
#A Kenyan court refused to punish apartment owners for parking a motorcycle because a court order banning more than two 'cars' did not cover motorbikes.
What this practically means
#Executive summary
#Key legal issues
#Competence of contempt proceedings instituted under the Judicature Act rather than the invalidated Contempt of Court Act
The application was properly brought under Section 5 of the Judicature Act; it is not defective for failing to invoke the Contempt of Court Act, which was nullified on 9/11/2018 in Kenya Human Rights Commission v Attorney General & Another
The court noted the High Court had invalidated the entire Contempt of Court Act, No 46 of 2016 for lack of public participation and encroachment on judicial independence, and that no material showed the decision was reviewed or overturned. With the Act invalidated, the Judicature Act framework on contempt was restored, so invoking it was proper.
Whether prior leave is required to initiate civil contempt proceedings
No leave is required. Following Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others, the court held the applicants needed no prior leave
Kenyan civil procedure law on contempt follows the law of England. English law changed in 2012, removing the leave requirement, and the Court of Appeal in Christine Wangari Gachege adopted that position. Accordingly, the present application for committal for contempt of an order was properly brought without prior leave.
Whether Kevin Ayodi's affidavit was incompetent for want of locus standi
The affidavit was competent; an ordinary affidavit may be sworn by anyone with personal knowledge of the facts, per Peter Onyango Onyiengo v Kenya Ports Authority
The impugned affidavit was not a verifying affidavit, which has specified deponents under Order 4 rule 1; it was an ordinary affidavit governed by the Oaths and Statutory Declarations Act, the Evidence Act and Order 19. Ayodi was the primary source of the evidence and did not attribute the facts to a third party, so his evidence was admissible.
Whether a motorcycle is a 'car' within the meaning of the order of 21/9/2018
No. The order prohibited parking more than two cars; a motorcycle is not a motor car under Section 2 of the Traffic Act, so parking two cars and a motorcycle was not a breach
The Traffic Act defines a motor-car as excluding a motorcycle; both are motor vehicles but distinct categories. The court's order of 21/9/2018 used the word 'cars', which corresponds to motor-cars under the Act, and did not cover motor cycles. Punishing the defendants for parking a motorcycle would therefore be inappropriate.
Legal principles established
#- The Contempt of Court Act, No 46 of 2016 was declared invalid on 9/11/2018 and cannot be invoked to found contempt proceedings; the Judicature Act framework was restored
- No prior leave of the court is required before bringing committal-for-contempt proceedings relating to breach of a court order
- Ordinary (non-verifying) affidavits may be sworn on behalf of a corporation by any person with personal knowledge of the facts deponed on; absence of formal authority is an irregularity that can be ignored
- A motorcycle is not a motor car within the meaning of the Traffic Act and the court's order of 21/9/2018
Court orders
#- 1.The notice of motion dated 15/1/2020 fails and is dismissed
- 2.The applicants shall bear costs of the application
- Jurisdiction invoked
- Section 5 of the Judicature Act (contempt of court), and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paragon Electronics Ltd & another v Yusuf Sharafally Esufali & another [2020] KEELC 414 (KLR)", Case Analysis (2020). Not stated in the excerpt ( suit over LR No. 330/355, Remax Terrace Apartments). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/414/eng@2020-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.