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ELCDismissedELC Case (Notice of Motion dated 13th January 2021) - Nairobi· [2021] KEELC 1859 (KLR)

Titus Kungu t/a Watford Print Media & 30 others v Saruki Investments Limited; Kenya Power & Lighting Company & another (Interested Parties) [2021] KEELC 1859 (KLR)

Environment and Land Court
23 September 2021
2,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to jail landlords' directors for contempt because the tenants couldn't prove deliberate disobedience with specific, documented acts.

What this practically means

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Executive summary

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The applicants, tenants of premises on LR No 209/136/131 Kirinyaga Road, Nairobi (Saruki/Saniki House), moved the Environment and Land Court by Notice of Motion dated 13th January 2021 seeking committal of four directors of the respondent landlord to civil jail for six months for alleged contempt of orders issued by this court on 21st August 2020 restraining interference with their possession without compliance with Cap 301, and of Business Premises Rent Tribunal orders of 6th July 2020. The respondent filed a preliminary objection contending the application was fatally defective and that the court lacked jurisdiction, and further argued that the Tribunal orders had expired, that no orders existed on the alleged dates, that wilful disobedience was not proved, and that no specific acts were attributed to three of the four directors. The court framed four issues. It held that it had jurisdiction under Section 5 of the Judicature Act and Order 40 rule 3(1) of the Civil Procedure Rules, and that a Notice of Motion was a proper vehicle for contempt proceedings, dismissing the preliminary objection in reliance on Article 159(2)(d). On contempt, it found the Tribunal orders had lapsed on 28th July 2020, and that the applicants had not shown any act by the directors breaching the orders of 21st August 2020. Applying the high threshold from Justus Kariuki Mate v Martin Nyaga Wambora, the court held that wilful disobedience was not demonstrated. The application and preliminary objection were dismissed with no orders as to costs.

Key legal issues

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01

Jurisdiction of the ELC over contempt

Holding

The court has jurisdiction under Section 5 of the Judicature Act and Order 40 rule 3(1) CPR

Reasoning

The court accepted the applicants' submission that Section 5 of the Judicature Act empowers the Environment and Land Court to deal with contempt and that Order 40 rule 3(1) gives jurisdiction to punish disobedience of its orders. The preliminary objection on jurisdiction therefore failed.

p. 2
02

Whether the contempt application is fatally defective

Holding

It is not defective; a Notice of Motion is a proper vehicle for contempt proceedings

Reasoning

Relying on Kiiru Tea Factory Limited v Stephen Maina Githiga and Article 159(2)(d) of the Constitution, the court found that contempt proceedings may be commenced by Notice of Motion and that no leave was required, dismissing the preliminary objection.

p. 4
03

Whether the Respondent's directors were guilty of contempt

Holding

No; the applicants failed to discharge the high burden of proving wilful disobedience

Reasoning

The Tribunal orders of July 2020 had lapsed by their own terms on 28th July 2020. As to the orders of 21st August 2020, the supporting affidavit did not specify any contravening acts. Racheal Wahito's January 2021 visit was not shown to breach the orders, and no acts were attributed to the other three directors.

p. 4

Legal principles established

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  • The Environment and Land Court has jurisdiction to entertain contempt applications under Section 5 of the Judicature Act and Order 40 rule 3(1) of the Civil Procedure Rules
  • An application for contempt may properly be brought by way of Notice of Motion
  • Contempt must be proved beyond any shadow of doubt, with full knowledge or notice of the order, given the high threshold involving deprivation of liberty

Court orders

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  1. 1.The preliminary objection dated 7th February 2021 is dismissed
  2. 2.The Notice of Motion dated 13th January 2021 is dismissed with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 50(1), 159(2)(b), 159(2)(d), 159(2)(e), 165(3)(e)
  • Judicature ActSection 5
  • Environment and Land Court ActSection 18
  • Civil Procedure ActSections 1A, 1B, 3A, 85
  • Civil Procedure Rules, 2010Order 40 rule 3, Order 51 rule 1, Order 5 rule 22B
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Controlled tenancy provisions
  • Contempt of Court Act, 2016nullified

Cases cited (16)

  • Kenya National Human Rights Commission vs Attorney General
    [2018] eKLR
  • R vs Kajiado County & 2 Others Ex parte Kilimanjaro Safari Club Ltd
  • Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Clerk, Nairobi City County Assembly vs Speaker, Nairobi City County Assembly & Another ODM, & 4 Others (Interested Parties)
    [2019] eKLR
  • Kimanja Kamau (suing as the personal representative of the estate of Gideon Gitundu Kimere (deceased) vs Francis Mwangi Mwaura & Another
    [2018] eKLR
  • Samuel M. N. Mweru & Others vs National Land Commission & 2 Others
    [2020] eKLR
  • Woburn Estate Ltd vs Margaret Bushforth
    [2016] eKLR
  • Refrigeration and Kitchen Utensils Ltd vs Gulab Chand Popatlal Shah & Another
    Civil Application No 39 of 1990
  • Cecil Millar vs Jackson Njeru & Another
    [2017] eKLR
  • Econet Wireless Kenya Limited vs Minister for Information and Communication of Kenya & Another
  • Amos Mathenge Kabuthu vs Simon Peter Mwangi
    [2015] eKLR
  • Jihan Freighters vs Hardware & General Stores Ltd
    [2015] eKLR
  • Republic vs Ahmad Abolfathi Mohammed & Another
    [2018] eKLR
  • Mutitika vs Baharini Farm Limited
    [1985] KLR 229
  • Kiiru Tea Factory Limited vs Stephen Maina Githiga
  • Justus Kariuki Mate & Another vs Martin Nyaga Wambora
    Civil Appeal No 24 of 2015
Jurisdiction invoked
Section 5 of the Judicature Act; Order 40 rule 3(1) of the Civil Procedure Rules; Articles 50(1), 159(2)(b), 159(2)(e) and 165(3)(e) of the Constitution

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, "Titus Kungu t/a Watford Print Media & 30 others v Saruki Investments Limited; Kenya Power & Lighting Company & another (Interested Parties) [2021] KEELC 1859 (KLR)", Case Analysis (2021). ELC Case (Notice of Motion dated 13th January 2021) - Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1859/eng@2021-09-23

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