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ELCDismissedNot stated in extract (Mombasa Environment and Land Court suit)· [2020] KEELC 1150 (KLR)

Kenya Ports Authority & another v Akaba Investment Limited & 8 others [2020] KEELC 1150 (KLR)

Environment and Land Court
16 September 2020
3,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Mombasa court dismissed both a delay-filed stay application and a contempt claim, showing courts punish delay and demand strong proof before jailing anyone.

What this practically means

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Executive summary

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The court (C.K. Yano, J, Environment and Land Court, Mombasa) dealt with two applications heard together by consent. First, the 1st defendant's Notice of Motion dated 15th July 2019 sought a stay of proceedings pending an appeal before the Court of Appeal against the ruling of 27th February 2019 granting the plaintiffs a temporary injunction over a public access road. Applying the Global Tours & Travels discretion, the court found the application had been filed after inordinate and unexplained delay (the ruling was delivered on 27th February 2019 but the application filed on 15th July 2019), was an afterthought filed only after the plaintiffs lodged their contempt application, and that no nugatory prejudice would arise since the injunction merely preserved the suit property. The stay application was dismissed. Second, the plaintiffs' Notice of Motion dated 6th June 2019 sought committal of Abdulbasit Swaleh, the 1st defendant's director, to civil jail for contempt of the injunctive orders, or alternatively attachment of the defendants' property, on the basis that a car washing business was being conducted on the suit property in breach of the orders. The court restated that contempt is quasi-criminal and must be proved to a standard higher than the balance of probabilities, almost beyond reasonable doubt, citing Gatharia Mutikika and Katsuri. The photographs were inconclusive, the letter relied on predated the order, and the director's uncontroverted evidence was that the car washing was by persons unknown and not controlled by the company. Contempt was not proved and the application was dismissed. As both applications failed, each party was ordered to bear its own costs. Judgment was delivered electronically on 16th September 2020 due to the COVID-19 pandemic.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused; the discretion was not exercised in favour of the applicant because of inordinate unexplained delay and because the appeal would not be rendered nugatory

Reasoning

The court applied the Global Tours & Travels criteria. The application was filed nearly five months after the ruling, without sound explanation, and only after the plaintiffs filed their contempt application, indicating an afterthought. Because the impugned ruling granted a temporary injunction merely preserving the suit property, continuation of the suit would not render the appeal nugatory and a stay would only delay the matter.

p. 3
02

Standard and proof of civil contempt

Holding

Contempt not proved; both the committal and alternative attachment prayers were refused

Reasoning

Contempt being quasi-criminal, the applicant must prove it beyond peradventure to a near-criminal standard. The photographs were inconclusive as to the activities and actors; the letter relied on predated the order; and the director's sworn, unchallenged evidence that car washing was by unknown persons not under the company's control stood uncontroverted. The plaintiffs failed to discharge the burden under Section 107(1) of the Evidence Act.

p. 5

Legal principles established

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  • Stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and expedition in bringing the application
  • Contempt proceedings are quasi-criminal and the standard of proof is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • The elements of civil contempt are: clear and unambiguous terms of the order, knowledge or notice of the terms, breach, and deliberateness
  • The power to commit for contempt must be exercised with great care and committal is a last resort

Court orders

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  1. 1.The 1st defendant's Notice of Motion dated 15th July 2019 seeking stay of proceedings is dismissed
  2. 2.The plaintiffs' Notice of Motion dated 6th June 2019 seeking contempt orders is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure RulesOrder 51 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 40 Rule 3
  • Civil Procedure RulesOrder 40 Rule 6
  • Judicature ActSection 5(1)
  • Civil Procedure (Amendment No.2) Rules 2012 (Senior Courts of England and Wales County Courts)Part 81
  • Evidence ActSection 107(1)
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Kenya Power and Lighting Co. Ltd –v- Esther Wanjiru Wokebii
    (2014) eKLR
  • Global Tours & Travels Limited
    HC Winding Up Cause No. 43 of 2000
  • Christopher Ndolo Mutuku & Another –v- CFC Stanbic Bank Ltd
    (2015) eKLR
  • Ezekiel Mule Musembi –v- H. Young & Young (EA) Limited
    (2019) eKLR
  • Henry Bukomeko & 2 Others –v- Statewide Insurance Co Ltd
    Uganda Supreme Court Civil Appeal No. 13 of 1989
  • Grain Bulk Handlers Limited –v- Mistry Jadra Parbat & Company Limited
    (2016) eKLR
  • Kenya Power & Lighting Co Ltd –v- Esther Wanjiru Wokabi
    (2014) eKLR
  • Jaber Mohsen Ali & Another –v- Priscillah Boit & Another
  • Selectisca Limited –v- Gold Rock Development Ltd
    (2015) eKLR
  • Katsuri Limited –v- Kapurchand Depar Shah
    (2016) eKLR
  • Salomon –v- A. Salomon Co. Ltd
    (1896) UKHL 1
  • Gatharia Mutikika –v- Baharini Farm Ltd
    (1985) KLR 227
Jurisdiction invoked
Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act; contempt jurisdiction under Section 5(1) of the Judicature Act, Section 63(c) and (e) of the Civil Procedure Act and Order 40 Rule 3 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, "Kenya Ports Authority & another v Akaba Investment Limited & 8 others [2020] KEELC 1150 (KLR)", Case Analysis (2020). Not stated in extract (Mombasa Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1150/eng@2020-09-16

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