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ELCDismissedNot stated in judgment· [2020] KEELC 3357 (KLR)

Sutton Holdings Limited v Abdulahi Omar Said (Environment & Land Case 75 of 2017) [2020] KEELC 3357 (KLR)

Environment and Land Court
30 January 2020
2,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail a company director for contempt because the order breached was vague and the evidence fell short of the near-criminal standard required.

What this practically means

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Executive summary

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The defendant in a land dispute sought contempt orders against Aman Kurji, the managing director of the plaintiff company, for breach of a status quo order issued on 29th June 2017, alleging that he ordered his staff to demolish and vandalise the defendant's structure and materials on the suit property. The application was brought under Section 5 of the Judicature Act, Order 52 of the Supreme Court of England Rules and Section 3A of the Civil Procedure Act. The respondent raised a preliminary objection on jurisdiction, contending that he was not named as a party to the suit or the application and that no application notice was served as required under Rule 81.4 of the English Procedure, and also filed a replying affidavit denying the breach, supported by a statutory declaration of Karim Amirali recanting his police statement as having been obtained under duress. The court, applying Eliud Muturi Mwangi v LSG Lufthansa Services, held that it had jurisdiction over a non-party contemnor, the managing director being the person in charge of the company, and rejected the objection as an impermissible technicality under Article 159 of the Constitution. On the merits, applying Gatharia K. Mutikika v Bahamin Farm Ltd, the court held that contempt is quasi-criminal and must be proved to a standard almost but not exactly beyond reasonable doubt. The court found the order of 29th June 2017 did not define the status quo, the alleged acts were imprecise, no evidence of the demolitions was exhibited, and the witness statements relied upon had been recanted. The Notice of Motion dated 16th April 2019 was dismissed with costs.

Key legal issues

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01

Jurisdiction over a non-party contemnor

Holding

The court has jurisdiction to punish for contempt a person not named as a party, including a company's managing director

Reasoning

Relying on Obaga, J in the LSG Lufthansa case, the court held that third parties who commit contempt may be committed, and that a company is represented by its directors or officers. The objection that the alleged contemnor was not a party was a technicality contrary to Article 159 of the Constitution.

p. 2
02

Standard of proof in contempt

Holding

Contempt being quasi-criminal, the applicant must prove the breach beyond peradventure, to a standard almost but not exactly beyond reasonable doubt

Reasoning

Applying Gatharia K. Mutikika v Bahamin Farm Ltd, the court held the burden lies on the applicant and committal powers must be exercised with great care, as a last resort and only in the clearest of cases.

p. 2
03

Whether contempt was proved

Holding

Contempt was not proved: the order did not define the status quo, the alleged acts were imprecise, no evidence of demolition or vandalism was exhibited, and key witness statements were recanted

Reasoning

The order of 29th June 2017 did not describe what status quo was to be maintained. The applicant relied on police statements later recanted in a statutory declaration as having been obtained under duress. The applicant failed to prove that the respondent gave the instructions alleged, and the court cannot commit on mere allegations.

p. 3

Legal principles established

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  • Non-parties, including directors and officers of a company, may be committed for contempt of court; jurisdiction is not limited to parties before the court
  • The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
  • Committal for contempt is a last resort, to be adopted only in the clearest of cases

Court orders

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  1. 1.The Notice of Motion dated 16th April 2019 is dismissed with costs

Authorities

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Legislation

  • Judicature ActSection 5
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159
  • Supreme Court of England RulesOrder 52, Rule 81.4

Cases cited (6)

  • Ocean Foods Limited v Osotspa Company Limited & 2 Others
    (2018) eKLR
  • Eliud Muturi Mwangi (practicing) in the name and style of Muturi & Company Advocates v LSG Lufthansa Services Europa/Africa GMBH & Another
    (2015) eKLR
  • Garun Investment Ltd v City Council of Nairobi
    (2019) eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    (2005) KLR 825
  • Abdi Satarhaji & Another v Omar Ahmed & Another
    (2018) eKLR
  • Gatharia K. Mutikika v Bahamin Farm Ltd
    (1985) KLR 27
Jurisdiction invoked
Section 5 of the Judicature Act (Cap 8), Order 52 of the Supreme Court of England Rules and Section 3A of the Civil Procedure Act

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, "Sutton Holdings Limited v Abdulahi Omar Said (Environment & Land Case 75 of 2017) [2020] KEELC 3357 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3357/eng@2020-01-30

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