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ELCDismissedApplication dated 22nd August 2021 (arising from Thika MCL&E 129 and 144 of 2019)· [2021] KEELC 1298 (KLR)

Ikinu Ngwatio Co Limited v Havak Enterprises Limited [2021] KEELC 1298 (KLR)

Environment and Land Court
1 November 2021
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika dismissed a contempt case because it should have been filed in the Magistrates Court that issued the original orders.

What this practically means

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Executive summary

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The Applicant sought three orders: lifting of Havak Enterprises Ltd's corporate veil, committal of its directors to prison for contempt of status quo orders issued by Hon. Ekhubi on 30/4/2020 in Thika ML&E 129 of 2019, and injunctions restraining dealings with Land No. Thika Municipality Block 29/719 and L.R 4953/2773 pending hearing of Thika MCL&E 129 and 144 of 2019. The Applicant claimed the land was allotted to it in 1994 for 99 years and that the Respondent fraudulently obtained title in 2019, demolished structures, and transferred the land to Yester Company Limited in breach of the status quo orders. The application was unopposed. The court identified the key issue as whether the Magistrates Court that issued the status quo orders has jurisdiction to hear contempt arising from its own orders. Relying on Samuel M. N. Mweru and the Kenya Human Rights Commission decision invalidating the Contempt of Court Act 2016, the court held that contempt law is now governed by the Judicature Act, and that Sections 10(3) of the Magistrates Act, 3A and 63 of the Civil Procedure Act and 29 of the ELC Act preserve the magistrates' power to punish contempt of their own orders. The court found the application incompetent for being filed before the ELC instead of the Magistrates Court with original jurisdiction, and dismissed it with no orders as to costs.

Key legal issues

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01

Jurisdiction of the Magistrates Court to determine contempt of its own orders

Holding

The Magistrates Court has power to punish for contempt of its own orders, derived from Section 10(3) of the Magistrates Act, Section 63 of the Civil Procedure Act, Section 3A of the Civil Procedure Act and Section 29 of the ELC Act; the application filed before the ELC was incompetent.

Reasoning

Following the invalidation of the Contempt of Court Act in the Kenya Human Rights Commission case, contempt law reverts to Section 5 of the Judicature Act, which preserves the dignity of subordinate courts. Section 10(3) of the Magistrates Act expressly empowers the magistrates' court to punish wilful disobedience of its orders, and its punitive limits (five days' imprisonment or a KSh 100,000 fine) apply. The inherent powers under Sections 3A and 63 CPA reinforce this jurisdiction.

p. 2
02

Governing law of contempt after the Contempt of Court Act was declared unconstitutional

Holding

The applicable law of contempt is that set out in the Judicature Act, incorporating English law as it stood when the application was filed.

Reasoning

The High Court in Kenya Human Rights Commission v Attorney General declared the entire Contempt of Court Act No. 46 of 2016 inconsistent with the Constitution and null and void. The consequence is that the law in force is the contempt law under the Judicature Act, which adopts the powers of the High Court of Justice in England, including rules 81.4-81.9 of the 2012 English rules on enforcement of judgments and service.

p. 1

Legal principles established

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  • Magistrates Courts have inherent and statutory power to punish for contempt of their own orders, unaffected by the declaration of invalidity of the Contempt of Court Act 2016
  • The power to punish for contempt is inherent in the courts in addition to statutory powers
  • The court with original jurisdiction over contempt of its own orders is the Magistrates Court, and contempt applications arising from such orders should be filed there in the first instance

Court orders

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  1. 1.The application dated 22nd August 2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Companies Act (Cap 486, now repealed)
  • Judicature ActSection 5
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63
  • Magistrates ActSection 10(3)
  • ELC ActSection 29
  • Contempt of Court Act No. 46 of 2016
  • Constitution of KenyaArticle 159

Cases cited (2)

  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Section 5 of the Judicature Act; Sections 10(3) and 29 of the Magistrates Courts Act and the ELC Act on contempt powers of subordinate courts

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, "Ikinu Ngwatio Co Limited v Havak Enterprises Limited [2021] KEELC 1298 (KLR)", Case Analysis (2021). Application dated 22nd August 2021 (arising from Thika MCL&E 129 and 144 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1298/eng@2021-11-01

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