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ELCDismissedNotice of Motion dated 21st March 2018 (in the principal suit, ELC)· [2020] KEELC 2799 (KLR)

Apex Steel Limited v Willy Nzuki Ndeti & 2 Others [2020] KEELC 2799 (KLR)

Environment and Land Court
8 May 2020
OAO. A. Angote
2,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a contempt claim because undated photographs and missing title entries couldn't prove anyone disobeyed a 2015 court order.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd Defendants moved the court by Notice of Motion dated 21st March 2018 seeking a declaration that the Plaintiff and its Directors (Pankajroy Nandal Nathwani, Neil Pankaj Nathwani and Kush Pankaj Nathwani) were in contempt of the consent order dated 22nd April 2015 and issued on 23rd April 2015, restoration of the suit properties (L.R. Nos. 337/4777 and 337/4775) to their status quo ante, and committal of the Directors to civil jail for six months. The Defendants alleged that after the order the Plaintiff constructed go-downs, houses and roads and created further charges over the suit properties in favour of Commercial Bank of Africa and NIC Bank. The Plaintiff denied breach, asserting the structures pre-dated the order, that it only completed the perimeter wall as permitted, and that the charges were created before the order, with the banks not being parties to the suit. The court framed one issue: whether the Directors were in contempt. Applying the quasi-criminal standard of proof from Katsuri Limited v Kapurchand Depar Shah and the four classical elements of contempt, the court held the consent order was clear and unambiguous, but the Defendants' photographic evidence was undated and unauthenticated, so post-order construction was not proved; and the Grants disclosed no registration of any charge after 22nd April 2015. The Motion was dismissed with costs on 8th May 2020 (O.A. Angote, J).

Key legal issues

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01

Whether the Plaintiff undertook further construction in breach of the consent order

Holding

Not proved - the order permitted completion of the perimeter wall and the photographic evidence does not show post-order construction

Reasoning

The consent order prohibited new construction but presupposed existing buildings were to remain in situ. The Defendants' photographs were undated and unauthenticated by the photographer, so the court could not determine whether structures post-dated the order of 22nd April 2015.

p. 3
02

Whether registering charges over the suit properties breached the status quo order

Holding

Not proved - no entry showing registration of a charge or further charge after the order was found on the Grant

Reasoning

Although charge documents dated 8th September 2015 existed in favour of Commercial Bank of Africa and NIC Bank, the court could not confirm from the title documents whether or when they were registered, and no post-order registration entry appeared on the Grant.

03

Standard and burden of proof in contempt proceedings

Holding

Contempt is quasi-criminal; breach must be precisely defined and proved to a high standard

Reasoning

Relying on Katsuri Limited v Kapurchand Depar Shah and Gatharia K. Mutikika v Baharini Farm Ltd, the court applied the heightened standard of proof in contempt, which the Defendants' evidence did not meet.

p. 3

Legal principles established

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  • Contempt of court is an offence of a criminal character and must be proved to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
  • The elements to be proved in contempt proceedings are that the terms of the order were clear and unambiguous and binding, the respondent had proper notice, the respondent acted in breach, and the conduct was deliberate
  • Undated photographs with no affidavit from the person who took them cannot establish when development occurred

Court orders

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  1. 1.The Notice of Motion dated 21st March 2018 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiff

Authorities

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Cases cited (3)

  • Priscilla Wanja Kibui vs. James Kiongo Kibui & Another
    [2014] eKLR
  • Gatharia K. Mutikika vs. Baharini Farm Ltd
    [1985] KLR 227
  • Katsuri Limited vs. Kapurchand Depar Shah
    [2016] eKLR
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court/ELC over disobedience of its orders (contempt proceedings in the pending suit)

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, "Apex Steel Limited v Willy Nzuki Ndeti & 2 Others [2020] KEELC 2799 (KLR)", Case Analysis (2020). Notice of Motion dated 21st March 2018 (in the principal suit, ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2799/eng@2020-05-08

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