Kilimani Project Foundation v B Concept Limited t/a B Club Nairobi & 7 others [2021] KEELC 718 (KLR)
The bottom line
#A Nairobi court found company directors personally in contempt for ignoring a judgment, showing Kenyan courts will hold individual officers accountable for a company's disobedience.
What this practically means
#Executive summary
#Key legal issues
#Elements of civil contempt
The applicant must prove the terms of the order, the respondent's knowledge of those terms, breach of the order, and that the conduct was deliberate; willfulness and bad faith are then inferred unless rebutted
The court adopted the Burchell test as approved in Samuel M. N. Mweru, requiring proof of the terms of the order, knowledge and breach, with willfulness and bad faith inferred on proof of those elements and rebuttable on a balance of probabilities. The standard in civil contempt is higher than in ordinary civil cases.
Knowledge of the orders by the 1st Respondent's directors
The directors were aware of the judgment and orders because the 1st and 4th Respondents had themselves sought a stay of the judgment of 17th October 2019
The 1st and 4th Respondents filed a notice of motion dated 31st October 2019 seeking stay of execution of the judgment delivered on 17th October 2019, supported by an affidavit sworn by Barry Ndengeyingoma, Managing Director of the 1st Respondent. This demonstrated actual knowledge of the judgment and orders by the directors, satisfying the knowledge element of contempt.
Whether the orders were clear and binding on the 1st Respondent
The orders were clear: the declaration bound the 1st to 4th Respondents, and enforcement/closure and licence revocation were directed to the 5th, 6th and 8th Respondents against the 1st to 4th Respondents
The 1st Respondent argued the orders were ambiguous as they were directed at the 5th, 6th and 8th Respondents. The court found the declaration in order (a) expressly covered the 1st Respondent's continued operation of business, while orders (d) and (e) directed enforcement of closure notices and revocation of licences against the 1st to 4th Respondents. No stay was in place, the Court of Appeal having dismissed the stay application on 18th December 2020.
Contempt by officers of a company
Officers of a company may be committed for contempt even though the company is the party to the suit
Relying on the Muturi v LSG Lufthansa decision, the court held that contempt by officers of a company or corporation is a classic basis for committal, rejecting the argument that the corporate veil had first to be lifted before citing the directors.
Legal principles established
#- Any person who commits an act of contempt of court is liable for indictment, and even third parties, including officers of a company or corporation, may be committed for contempt
- A court order binds the party against whom it is addressed and remains valid and enforceable until set aside; continued operation in the absence of a stay amounts to contempt
Court orders
#- 1.The directors of the 1st Respondent are found in contempt of the court's orders
- 2.The directors of the 1st Respondent, or whoever is nominated by the 1st Respondent, to present themselves before court on 15th February 2022 for mitigation and sentencing
- Jurisdiction invoked
- Inherent contempt jurisdiction of the court over disobedience of its orders in a petition under Article 42(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilimani Project Foundation v B Concept Limited t/a B Club Nairobi & 7 others [2021] KEELC 718 (KLR)", Case Analysis (2021). Not stated in the extract (Petitioner's Notice of Motion dated 9th October 2020 in the main petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/718/eng@2021-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.