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ELCDismissedNotice of motion dated 29th July 2019 in the pending suit (part heard before Hon. L. J. Gacheru)· [2020] KEELC 2085 (KLR)

Gatkim Enterprises Limited v County Government of Nairobi & 3 others [2020] KEELC 2085 (KLR)

Environment and Land Court (High Court), Nairobi
18 June 2020
LKL. Komingoi
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a bid to jail Nairobi county officers for contempt, ruling the claimant failed to prove the orders were disobeyed or even properly served.

What this practically means

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Executive summary

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This was a notice of motion dated 29th July 2019 in a part-heard land suit, brought by the plaintiff seeking that four officers of the 1st defendant county government and the 3rd defendant be summoned to show cause, and thereafter committed, for disobeying orders made by Hon. L. J. Gacheru on 17th February 2017 maintaining status quo over the suit property and restraining its subdivision. The plaintiff, through the affidavit of its managing director Lydia Muthoni Wahome, alleged that in July 2019 the 1st defendant erected bill boards at the suit property advertising a bus terminus and intended construction, thereby altering the status quo. The application was opposed by all defendants: the 1st defendant contended there were no substantive officers holding the cited positions and no proof of service of the orders; the 3rd defendant, the area MCA, said his name appeared on the bill boards only by virtue of his position and that no willful disobedience was proved. The court, L. Komingoi J, considered the record and found that order no. 3 of the ruling of 17th February 2017 expressly permitted the suit property to be used as a bus terminus, so no act of contravention was shown, and the photographs depicted no construction. Applying Mutitika v Baharini Farm Limited, the court held the elevated standard of proof in contempt proceedings was not met, there being no proof of personal service or knowledge of the orders, no substantive holders of the cited offices, and no evidence of any role by the 2nd and 3rd defendants. The application was dismissed with costs to the defendants/respondents.

Key legal issues

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01

Whether the defendants disobeyed the orders of 17th February 2017

Holding

No contravention was established because the orders expressly permitted the suit property to be used as a bus terminus, and the photographs showed only bill boards, not construction.

Reasoning

The court examined the ruling of Hon. L. J. Gacheru of 17th February 2017, which directed maintenance of status quo but, in order no. 3, expressly stated that the suit property could be utilized as a bus terminus. Since the bill boards merely advertised an intended terminus and no construction was depicted, the acts complained of fell within what the orders allowed.

02

Whether the alleged contemnors were served with or had knowledge of the orders, and whether the plaintiff met the standard of proof

Holding

The plaintiff failed to prove personal service or knowledge, and the application did not meet the threshold for committal.

Reasoning

Citing Mutitika v Baharini Farm Limited, the court applied the elevated standard of proof in contempt proceedings. There was no evidence the cited officers were personally served with the orders or had knowledge of them. Further, as at July 2019 there were no substantive holders of the cited offices, and no evidence linked the 2nd and 3rd defendants to the bill boards beyond their appearance thereon by virtue of public office.

p. 2

Legal principles established

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  • The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt.
  • A party seeking committal for contempt must prove personal service of the order, or knowledge of it, on the alleged contemnor.

Court orders

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  1. 1.The notice of motion dated 29th July 2019 is dismissed with costs to the defendants/respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 159(2)(a)(b)(d)
  • Judicature ActSection 3(1) & 5
  • High Court (Organization and Administration) ActSection 36
  • Civil Procedure ActSections 1A, 1B, 3A, 40, 63(c) and (e)
  • Civil Procedure Rules 2010 (Cap 21)Order 40 rule 3(1)

Cases cited (1)

  • Mutitika vs Baharini Farm Limited
    [1985] KLR 229, 234
Jurisdiction invoked
Articles 10 and 159(2)(a)(b)(d) of the Constitution of Kenya, 2010; Section 3(1) & 5 of the Judicature Act; Section 36 of the High Court (Organisation and Administration) Act; Sections 1A, 1B, 3A, 40 and 63(c) and (e) of the Civil Procedure Act; Order 40 rule 3(1) of the Civil Procedure Rules 2010

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, "Gatkim Enterprises Limited v County Government of Nairobi & 3 others [2020] KEELC 2085 (KLR)", Case Analysis (2020). Notice of motion dated 29th July 2019 in the pending suit (part heard before Hon. L. J. Gacheru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2085/eng@2020-06-18

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