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ELCDismissedChamber Summons application dated 14th July, 2021 (ELC suit, Machakos)· [2021] KEELC 602 (KLR)

Vulpine Investments Limited v Posstone Limited & another [2021] KEELC 602 (KLR)

Environment and Land Court
24 November 2021
2,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, Judge) on the Plaintiff's Chamber Summons application dated 14th July, 2021 in a pending land dispute over LR Number 15050/16. The Plaintiff sought an order of eviction against the Defendants pending mention, and summons against George Munene, the 2nd Defendant, and officials of Posstone Limited to show cause why contempt proceedings should not commence for disobedience of an ex parte interim injunction granted on 17th June, 2021, with committal to jail in default. The Defendants, through a replying affidavit of George Munene, denied mining on the suit land, contending that only their equipment remained on site and that the Plaintiff was using the interim orders to evict them without meeting the threshold for an interim mandatory injunction. The court framed two issues: whether the Defendants were in contempt, and whether eviction orders should issue. On contempt, the court held that contempt proceedings are criminal in nature and the burden lies on the Plaintiff; the Plaintiff failed to show when or by whom the alleged acts were committed, the injunction application had never been heard inter partes, and crucially no Penal Notice was attached to the order served, rendering the contempt application incompetent, following Mwangi Wang'ondu v Nairobi City Commission. On eviction, applying Kenya Breweries v Washington Okeyo, the court found no special circumstances and no conclusive proof of interference, holding that viva voce evidence was required. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Defendants were in contempt of the interim injunction order of 17th June, 2021

Holding

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

Reasoning

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.

p. 3
02

Whether eviction from the suit land could be ordered at the interlocutory stage as a mandatory injunction

Holding

No; the threshold for an interlocutory mandatory injunction was not met

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Chamber Summons application dated 14th July, 2021 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 4(2)
  • Judicature Actsection 5(1)

Cases cited (9)

  • Hadkinson V Hadkinson
    (1952) ALL ER
  • EAM v PAA
    (2017) eKLR
  • Kenya Breweries Limited & Another v Washington O. Okeyo
    (2002) eKLR; also (2002) EA 109
  • Eliud Muturi Mwangi (practicing in the name and style of Muturi & Company Advocates) V LSG Lufthansa Services Europa / Africa GMBH & Another
    (2015) eKLR
  • Maisha Nishike Ltd vs. Commissioner of Lands & 3 others
    (2011) eKLR
  • Kalyasoi Farmers Cooperative Society & others Vs County Council of Narok
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
  • Mwangi H C Wang'ondu v Nairobi City Commission
    Civil Appeal No 95/1988 (UR)
  • Africa Management Communication International Limited Vs Joseph Mathenge Mugo & Anor
    (2013) eKLR
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

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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, "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.