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ELCDismissedNairobi ELC No 895 of 2014 (Notice of motion dated 8/5/2019)· [2020] KEELC 3951 (KLR)

Blossom Hill Estate Agents Co. Ltd v National Land Commission & 7 others [2020] KEELC 3951 (KLR)

Environment and Land Court
15 January 2020
BEB M Eboso
2,355 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 punish a company for contempt because the applicant could not prove the court orders it cited were still valid when breached.

What this practically means

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Executive summary

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Blossom Hills Estate Agents Co Ltd, the plaintiff in Nairobi ELC No 895 of 2014, moved the court by notice of motion dated 8/5/2019 seeking contempt sanctions against Alderma Limited, the 8th defendant, and its Managing Director Bharat Ramji Manji. The applicant alleged that Alderma demolished a permanent house on the suit property and commenced construction in breach of conservatory orders issued by Lenaola J on 28/5/2015 in High Court Constitutional Petition No 221 of 2015 and by Mutungi J on 19/6/2015 in ELC 493 of 2015, and sought Alderma's summons and reprimand, piercing of the corporate veil, and committal of Mr Manji to civil jail for six months plus a fine. The 8th defendant opposed, contending inter alia that the application was brought under an annulled statute, that no subsisting order was breached, that it purchased the plot at a public auction under a decree in CMCC No 16 of 2013, that it was never served with the orders, and that any interim orders had lapsed under Order 40 Rule 6 of the Civil Procedure Rules. Justice B M Eboso framed four issues. He held that after the High Court annulled the Contempt of Court Act No 46 of 2016, the application was properly founded on Section 5 of the Judicature Act. He then found that both orders relied on were interim orders that were never extended and had long lapsed when the contempt application was filed. The applicant, bearing the evidential burden, failed to prove subsistence of the orders at all material times or to specify when any breach occurred, so contempt was not established. The notice of motion was dismissed with costs to the 8th defendant.

Key legal issues

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01

Competence of the contempt application after annulment of the Contempt of Court Act

Holding

The application was properly brought under Section 5 of the Judicature Act and was not incompetent

Reasoning

The High Court in Kenya Human Rights Commission v Attorney General & another [2018] eKLR wholly annulled the Contempt of Court Act No 46 of 2016 and that annulment had not been set aside. Contempt jurisdiction therefore reverted to the pre-Act framework in Section 5 of the Judicature Act, which the applicant had properly invoked, so the objection based on the legal framework failed.

p. 3
02

Subsistence of the interim orders of Lenaola J (28/5/2015) and Mutungi J (19/6/2015)

Holding

Both were interim orders that were never extended and had lapsed long before the application

Reasoning

The Lenaola J order was granted pending an interpartes hearing on 4/6/2015, and the Mutungi J conservatory order was to run until the application was heard interpartes. The record showed no proceedings in Petition No 221 of 2015 after 19/6/2015 and no extension of the ELC 895 of 2014 interim orders beyond 15/4/2015. Neither order subsisted when the contempt application was filed in May 2019.

p. 3
03

Whether the 8th defendant was in contempt

Holding

No contempt established

Reasoning

Since the plaintiff failed to demonstrate that the orders of 28/5/2015 and 19/6/2015 subsisted at all material times, and did not specify the precise time of the alleged contempt, contempt could not be made out against the 8th defendant or its Managing Director. The notice of motion was accordingly dismissed with costs to the 8th defendant.

p. 4

Legal principles established

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  • Following the annulment of the Contempt of Court Act, contempt jurisdiction is governed by Section 5 of the Judicature Act as it stood before the Act
  • An applicant in contempt proceedings bears the evidential burden of proving that the orders allegedly violated subsisted at all material times and of specifying when they were breached

Court orders

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  1. 1.The plaintiff's notice of motion dated 8/5/2019 is dismissed for lack of merit
  2. 2.The 8th defendant shall have costs of the application, to be borne by the applicant

Authorities

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Legislation

  • Judicature ActSection 5(1) and 5(2)
  • Contempt of Court Act No 46 of 2016whole Act (annulled)
  • Civil Procedure RulesOrder 40 Rule 6
  • Rating Actnull
  • Civil Procedure Rules 1999 of the Supreme Court of EnglandRule 81(4)

Cases cited (1)

  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
Jurisdiction invoked
Section 5 of the Judicature Act (contempt jurisdiction, following annulment of the Contempt of Court Act No 46 of 2016)

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, "Blossom Hill Estate Agents Co. Ltd v National Land Commission & 7 others [2020] KEELC 3951 (KLR)", Case Analysis (2020). Nairobi ELC No 895 of 2014 (Notice of motion dated 8/5/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3951/eng@2020-01-15

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