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ELCPartially AllowedApplication dated 24/4/2020 (within suit concerning L.R. No. 209/11/348)· [2020] KEELC 2643 (KLR)

Premier Daffodil Limited v Speedbird Travel and Safaris Ltd & 2 others [2020] KEELC 2643 (KLR)

High Court of Kenya
7 May 2020
KBK. Bor
2,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By an application dated 24/4/2020, the Plaintiff, registered owner of L.R. No. 209/11/348 (approximately 7.4 acres in Embakasi, Nairobi), sought contempt findings and punishment against the Defendant company and its directors, Dave Munya Mwangi and Phyllies Wanjiru Mwangi, for breaching an injunction issued on 2/4/2020 restraining excavation and construction on the Suit Property pending inter partes hearing of an application dated 10/3/2020. The Plaintiff relied on affidavits of director Dushyant N. Patel and process server Gibson Wamweya Mburu showing service on 7/4/2020 at the offices of Express Arts Limited on Mwangi's instructions, and on 21/4/2020 by email, WhatsApp, and upon the Defendant's advocates Malonza and Company Advocates, plus photographs of continued construction. Dave Munya Mwangi filed a replying affidavit denying service and asserting his own possession, but the Respondents did not attend the virtual hearing on 6/5/2020. Applying Shimmers Plaza Limited v National Bank of Kenya Limited, the court held that personal service is unnecessary; knowledge suffices for contempt. It found the Defendant and Dave Munya Mwangi were served and disobeyed the order, but found no evidence of service on Phyllies Wanjiru Mwangi and made no order against her. The court committed Dave Munya Mwangi to civil jail for 60 days, fined the Defendant Kshs. 1,000,000 (payable by attachment and sale of assets), directed seizure and detention of property and vehicles found on the Suit Property until the contempt is purged, and awarded costs of the application to the Plaintiff against the Defendant. Judgment delivered virtually at Nairobi on 7 May 2020.

Key legal issues

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01

Whether service of the injunction order of 2/4/2020 on the Defendant and Dave Munya Mwangi was proved despite the absence of personal service

Holding

Service was proved: the process server left documents with Ms. Pauline on Dave Mwangi's instructions, and the order was served by email and WhatsApp on Mwangi and on the Defendant's advocates on 21/4/2020

Reasoning

Relying on Shimmers Plaza, the court held that personal service is not required; knowledge suffices. The process server's uncontradicted affidavit showed direction of service by Mwangi to his assistant. Counsel's email confirming instructions to act, the WhatsApp printout, and service on Malonza and Company Advocates established knowledge. The company's knowledge is imputed through its director and advocates.

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02

Whether the Defendant and Dave Munya Mwangi disobeyed the order

Holding

Yes; excavation and construction continued after service, as shown by the photographs and by Mwangi's own replying affidavit

Reasoning

Photographs annexed by the Plaintiff showed excavation and construction continuing on the Suit Property after 21/4/2020. Mwangi admitted continued development in his replying affidavit, deposing that he had embarked on a very costly development of the property, which the court treated as an admission of disobedience despite knowledge of the order.

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03

Whether Phyllies Wanjiru Mwangi was liable for contempt

Holding

No; no evidence of service of the order on her

Reasoning

Although named in the application and sought to be punished, the Plaintiff adduced no evidence that the injunction order was served on Phyllies Wanjiru Mwangi. Without proof of knowledge of the order, contempt could not be established against her, and the court declined to make any finding or order against her.

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Legal principles established

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  • Personal service of a court order with penal notice is not a prerequisite to contempt; knowledge of the order suffices
  • A person has notice of a fact if he has actual knowledge of it, received information about it, or has reason to know about it or a related fact

Court orders

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  1. 1.Mr. Dave Munya Mwangi committed to civil jail for 60 days
  2. 2.The Defendant to pay a fine of Kshs. 1,000,000 for contempt of court, its assets to be attached and sold in payment of the fine
  3. 3.All property including motor vehicles driven by the Defendant's agents, servants or employees found on L.R. No. 209/11348 Nairobi to be seized and detained on the Suit Property until the Defendant and Dave Munya Mwangi purge the contempt of the court orders made on 2/4/2020
  4. 4.Costs of the application to be borne by the Defendant
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court to punish for disobedience of its own orders

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, "Premier Daffodil Limited v Speedbird Travel and Safaris Ltd & 2 others [2020] KEELC 2643 (KLR)", Case Analysis (2020). Application dated 24/4/2020 (within suit concerning L.R. No. 209/11/348). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2643/eng@2020-05-07

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