Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 25th June 2021 (arising from suit over Land Reference No. 36/VII/405, Bangkok Shopping Mall, Eastleigh)· [2021] KEELC 388 (KLR)

Hussein Ahmed Farah & 2 others v Yusuf Abdi Adan [2021] KEELC 388 (KLR)

Environment and Land Court
25 November 2021
3,004 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to jail a landlord for contempt because the injunction had lapsed before it was served - timing and proof of service are everything.

What this practically means

#

Executive summary

#
The Plaintiffs moved the court by notice of motion dated 25th June 2021 under Section 5(1) of the Judicature Act, Rule 81.4 of the English Civil Procedure (Amendment No. 2) Rules, Articles 201 and 251 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking the committal of the Defendant, Yusuf Abdi Adan, to civil jail for six months, a fine of six months' rent of the suit property, and sequestration of his assets for disobeying orders issued on 21st April 2021 restoring the status quo ante at Bangkok Shopping Mall on LR No. 36/VII/405, Eastleigh, and directing the Regional Police Commander, Nairobi to ensure compliance. The Defendant denied service of the orders and contended that, having been extracted on 27th April 2021 and served only on 6th May 2021, the ex parte orders lapsed automatically under Order 40 Rule 4(3) of the Civil Procedure Rules for want of service within three days. The court framed three issues: service, contempt and costs. Applying Mutitika v Baharini Farm on the elevated standard of proof in contempt, and following Immaculate Wambia Mungai and Esther Kakonyo Wanjohi, the court found no affidavit of a process server proving service within three days, held the orders had lapsed so no contempt could be founded on them, and found the Plaintiffs had not proved disobedience. The application was dismissed with costs abiding the main suit, but the Defendant was directed to render accounts of all rent collected over the last six years within thirty days.

Key legal issues

#
01

Whether there existed a valid order capable of founding contempt

Holding

The ex parte orders of 21st April 2021 lapsed automatically for failure to serve within three days; no contempt could be founded on them

Reasoning

Order 40 Rule 4(3) requires an ex parte injunction to be served on the party to be restrained within three days of issue, failing which it automatically lapses. The only evidence showed service on counsel on 6th May 2021, beyond the three-day period, with no affidavit of a process server proving earlier service. Extensions granted by the court were on the mistaken belief that the orders had been served, and were therefore extensions of nothing.

p. 4
02

Whether contempt was proven even assuming a valid order

Holding

No, the Plaintiffs failed to discharge the elevated standard of proof in contempt proceedings

Reasoning

The court applied Mutitika v Baharini Farm on the standard of proof in contempt being almost but not exactly beyond reasonable doubt. The court rejected the submission that the order was ambiguous but held it was for the Plaintiffs to prove they were denied access by partisan police and goons; the police report did not establish that the Respondent refused to obey the orders.

p. 4

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt
  • An ex parte injunction not served within three days lapses automatically, and there can be no contempt of a lapsed order

Court orders

#
  1. 1.The notice of motion dated 25th June 2021 is dismissed
  2. 2.Costs to abide the outcome of the main suit
  3. 3.The Defendant is directed to render accounts of all rents proceeds/income collected for the last six (6) years within thirty (30) days

Authorities

#

Legislation

  • Judicature ActSection 5(1)
  • Civil Procedure (Amendment No. 2) Rules of EnglandRule 81.4
  • Constitution of KenyaArticles 201 and 251
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 40 Rule 4(3); Order 50 Rule 2 and Rule 8

Cases cited (13)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos v Attorney General & 8 others
    [2012] eKLR
  • Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another
    [2014] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Tribe Hotel Ltd v Josephat Cosmas Onyango
    [2018] eKLR
  • Jane Waithera v Joseph Kariuki Mbuthia & 3 Others
    [2013] eKLR
  • Immaculate Wambia Mungai v Fredrick Mwai Mwihia
    [2017] eKLR
  • Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 Others
    [2016] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229
  • Alken Connections Limited v Safaricom Limited & 2 Others
    [2013] eKLR
  • Michael Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Esther Kakonyo Wanjohi v Julian Wambui Gakuru
    [2018] eKLR
  • Auni Bhaiji & 4 Others v Chief Magistrate, Milimani Law Courts & 2 Others
    [2017] eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act Cap 8; Civil Procedure (Amendment No. 2) Rules of England Rule 81.4; Articles 201 and 251 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hussein Ahmed Farah & 2 others v Yusuf Abdi Adan [2021] KEELC 388 (KLR)", Case Analysis (2021). Notice of Motion dated 25th June 2021 (arising from suit over Land Reference No. 36/VII/405, Bangkok Shopping Mall, Eastleigh). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/388/eng@2021-11-25

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