Vulpine Investments Limited v Posstone Limited & another [2021] KEELC 602 (KLR)
The bottom line
#The Machakos Environment and Land Court dismissed a contempt and eviction application because the served court order lacked a Penal Notice and contempt wasn't proven to the required high standard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants were in contempt of the interim injunction order of 17th June, 2021
Contempt was not established; the Plaintiff did not prove the acts of contempt to the required standard and the order served carried no Penal Notice
The court set out the elements of civil contempt: clear and unambiguous terms of the order binding on the defendant, knowledge or proper notice, breach, and deliberateness. Contempt being criminal in nature, the burden lay on the Plaintiff. The order was ex parte and the injunction application had never been heard inter partes. The Plaintiff did not show when or by whom the alleged acts were committed, and no Penal Notice was attached to the order served, rendering the contempt application incompetent.
Whether eviction from the suit land could be ordered at the interlocutory stage as a mandatory injunction
No; the threshold for an interlocutory mandatory injunction was not met
Relying on Kenya Breweries Ltd v Washington Okeyo, the court held that a mandatory injunction is normally not granted on an interlocutory application absent special circumstances. The photographs only showed people in a quarry and machines, without conclusive proof of interference by the Defendants, and viva voce evidence was needed for a proper determination. The court accordingly declined to grant eviction orders.
Legal principles established
#- Every person against whom a court order is made is bound to obey it unless and until it is discharged, even if they believe it irregular or void
- The standard of proof in contempt proceedings is higher than the balance of probabilities and almost beyond reasonable doubt
- An order served without a penal notice of the consequences of disobedience does not found a valid application for contempt
- A mandatory injunction may be granted on an interlocutory application only in special circumstances or where the case is clear
- An ex parte injunction may be granted only once for not more than fourteen days and extended only once, by consent or court order, for a further period not exceeding fourteen days
Court orders
#- 1.The Chamber Summons application dated 14th July, 2021 is dismissed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (interlocutory application in a pending suit); enforcement of contempt of court orders under section 5 of the Judicature Act and Order 40 rule 4(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vulpine Investments Limited v Posstone Limited & another [2021] KEELC 602 (KLR)", Case Analysis (2021). Chamber Summons application dated 14th July, 2021 (ELC suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/602/eng@2021-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.