Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the excerpt (E&L suit filed 12th February 2019; contempt application Notice of Motion dated 16th December, 2019)· [2020] KEELC 437 (KLR)

U-Haul Vehicle Ltd v Kiambu Dandora Farmers Co. Ltd & 5 others [2020] KEELC 437 (KLR)

Environment and Land Court
26 November 2020
4,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Nairobi (S. Okong'o, J) on a Notice of Motion dated 16th December, 2019 in which the plaintiff sought findings of contempt against the directors of the 1st defendant (Kiambu Dandora Farmers Company Limited) and the 2nd defendant for continued construction on L.R. Nos. 209/9465-9468 despite orders of 17th June, 2019 restraining further development, committal of the contemnors to civil jail for six months, and demolition of structures erected in defiance of the orders. Earlier orders directing the OCS Buruburu, later substituted with the OCS Dandora, to arrest those constructing were not enforced. The court restated that the standard of proof in contempt is higher than on a balance of probabilities, almost but not exactly beyond reasonable doubt (Mutitika v Baharini Farm Ltd), and that knowledge of an order suffices without personal service (Shimmers Plaza; Basil Criticos). It held that contempt was not proved against the 1st defendant or its directors - the burden lay on the plaintiff and the 1st defendant had no duty to assist - and that no application for contempt could lie against the unserved 2nd defendant. However, the court found continuing construction after 17th June, 2019 constituted contempt by the unidentified builders and ordered that all post-17th June 2019 structures be demolished by their owners forthwith, with publication of the order, a 21-day window, liberty for the plaintiff to demolish at its own cost recoverable at the conclusion of the suit, and police security from the OCS Dandora. Prayers for committal were declined; costs were in the cause.

Key legal issues

#
01

Whether contempt was proved against the 1st defendant and its directors

Holding

Not proved; the plaintiff bore the burden and produced no evidence that the 1st defendant, its directors, members or agents carried out the construction

Reasoning

The court applied the higher standard of proof in Mutitika v Baharini Farm Ltd. Although the judge doubted the 1st defendant's candour, believing it knew the identities of the trespassers, the 1st defendant had no duty to assist the plaintiff prove its case. Suspicion or lack of candour cannot substitute for proof to the heightened contempt standard.

p. 4
02

Whether contempt could lie against the 2nd defendant

Holding

No; there was no evidence of service of the 17th June, 2019 order or of its knowledge, and no evidence of its involvement in the construction

Reasoning

The 2nd defendant never participated in the proceedings and there was no proof of service of summons, applications or the orders. Service with penal notice, or at least knowledge of the order, is a prerequisite to a contempt finding; absent both, the application against it could not succeed.

p. 4
03

Whether the structures erected after the 17th June, 2019 order should be demolished

Holding

Yes; the continuing construction after the order was contempt, and demolition of post-order structures was ordered against the owners on stated terms

Reasoning

The court found it undisputed that construction continued despite the order of 17th June, 2019 and despite the police enforcement order. Those constructing knew of the proceedings. The court held demolition necessary to vindicate the court's authority and ordered demolition by the owners, failing which the plaintiff may demolish at its own cost with police security.

p. 4

Legal principles established

#
  • Knowledge of a court order suffices for contempt proceedings; personal service with a penal notice is no longer mandatory
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • There is an unqualified obligation to obey court orders unless and until discharged
  • A court cannot be helpless in the face of deliberate defiance of its orders

Court orders

#
  1. 1.All structures and buildings constructed on or put up on L.R. No. 209/9465, 209/9466, 209/9467 and 209/9468 after 17th June, 2019 shall be demolished by the owners thereof forthwith
  2. 2.The plaintiff shall pin a copy of the order in a conspicuous place on each structure and publish the order once in the Daily Nation and the Standard newspapers on a weekday
  3. 3.If owners fail to demolish within 21 days of publication, the plaintiff may demolish at its own cost, recoverable at the conclusion of the suit subject to proof of responsibility
  4. 4.The 5th respondent through the Officer Commanding Dandora Police Station shall provide the plaintiff with security to carry out the demolition
  5. 5.Costs of the application in the cause

Authorities

#

Cases cited (10)

  • Econet Wireless Kenya Ltd. v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • B v Attorney General
    [2004] 1 KLR
  • Basil Criticos v Attorney General & 4 others
    [2012] eKLR
  • Lakeview Investment Ltd. v John Paul Odero (sued as the chairman, Nairobi Kenya Secondary School Heads Association)
  • The Board of Governors Moi High School, Kabarak v Malcom Bell & another
    SC Petition Nos. 6 & 7 of 2013
  • Nyamogo & Another v Kenya Posts & Telecommunications Corporation
    [1990-1994] E.A 465
  • Hadkinson v Hadkinson
    [1952] All ER 567
  • Mwangi H.C Wangondu v Nairobi City Commission
    Civil Appeal No. 95 of 1998
  • Mutitika v Baharini Farm Ltd
    [1985] KLR 227
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
Jurisdiction invoked
Inherent powers of the court to punish for contempt of its orders (contempt of court proceedings in a pending land suit); specific statute not stated in the judgment.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "U-Haul Vehicle Ltd v Kiambu Dandora Farmers Co. Ltd & 5 others [2020] KEELC 437 (KLR)", Case Analysis (2020). Not stated in the excerpt (E&L suit filed 12th February 2019; contempt application Notice of Motion dated 16th December, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/437/eng@2020-11-26

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