Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Machakos ELC)· [2020] KEELC 3673 (KLR)

Erdermann Property Limited v Safaricom Staff Pension Scheme Registered Trustees [2020] KEELC 3673 (KLR)

Environment and Land Court
7 February 2020
OAO.A. Angote
3,282 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed contempt claims because the property owner couldn't prove the developer actually damaged its sewer line, despite photos of nearby excavators.

What this practically means

#

Executive summary

#
Two contempt applications were brought by the Plaintiff against the Defendant, its main contractor (Landmark Holdings Limited) and its Development Manager (Amazon Consultants Limited), alleging breach of an interlocutory injunction issued on 31st January, 2019 restraining excavation, demolition or interference with the Plaintiff's sewer line along Quarry Road and old Mombasa Road, in the context of the Defendant's Crystal Rivers mixed-use development on L.R. No. 337/5183. The first application sought notices to the contemnors to show cause; the second sought a declaration of contempt, committal for six months, sequestration and fines. The court framed two issues: knowledge of the orders and breach. On knowledge, it found the orders were served on Amazon on 1st February, 2019 and extended in the presence of the Defendant's counsel, so knowledge sufficed in place of personal service, following Shimmers Plaza and Basil Criticos. On breach, the court examined the photographs annexed by the Plaintiff and found they depicted excavation of a road, not the sewer line; the Plaintiff failed to demonstrate the sewer line's state between 31st January and 8th February, 2019 or thereafter, did not identify the excavators or their ownership, and an excavator's mere presence on an ongoing project was not conclusive of breach. Applying the standard of proof in Mutitika vs. Baharini Farm Limited, the court held contempt was not proved and dismissed both applications with costs on 7th February, 2020.

Key legal issues

#
01

Notice/knowledge of the orders

Holding

All alleged Contemnors had knowledge of the orders through service on Amazon and notification by consultants and counsel; knowledge dispenses with personal service

Reasoning

The orders of 31st January, 2019 were served on Amazon Consultants Limited on 1st February, 2019, and Amazon's Director admitted notifying all project consultants. The orders were also extended on 12th February, 2019 in the presence of the Defendant's counsel. Relying on Shimmers Plaza and Basil Criticos, the court held knowledge equivalent to service.

p. 3
02

Breach of the orders

Holding

Breach not proved; the photographs did not show excavation, demolition, destruction or interference with the sewer line, and no nexus to the alleged Contemnors' equipment was established

Reasoning

The court carefully examined the photographs and found they showed excavations on a road, whereas the order only restrained interference with the sewer line. The Plaintiff did not show the state of the sewer line before and after the orders, did not identify the excavators' registration numbers or ownership, and the mere presence of an excavator on an ongoing project is not conclusive of breach.

p. 4

Legal principles established

#
  • Elements of civil contempt: clear and unambiguous order, knowledge or notice, breach, and deliberateness
  • Knowledge of a court order suffices in place of personal service for contempt proceedings
  • Standard of proof in contempt is higher than balance of probabilities but below beyond reasonable doubt

Court orders

#
  1. 1.Dismissal of the Applications dated 8th February, 2019 and 26th April, 2019 with costs

Authorities

#

Legislation

  • Evidence ActSections 65 and 78A
  • Civil Procedure RulesOrder 40 Rule 3(1)

Cases cited (4)

  • Sam Nyamweya & Others vs. Kenya Premier League Ltd and Others
    (2015) eKLR
  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    (2015) eKLR, Civil Appeal No. 33 of 2012
  • Basil Criticos vs. Attorney General & 8 Others
    (2012) eKLR
  • Mutitika vs. Baharini Farm Limited
    (1985) KLR, 229, 234
Jurisdiction invoked
Not stated; first-instance civil contempt applications under Order 40 Civil Procedure Rules regime

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Erdermann Property Limited v Safaricom Staff Pension Scheme Registered Trustees [2020] KEELC 3673 (KLR)", Case Analysis (2020). Not stated in judgment (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3673/eng@2020-02-07

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