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ELCDismissedMombasa HCCC No. 206 of 2002 (in relation to the Notice of Motion dated 19th April 2018)· [2021] KEELC 2041 (KLR)

Abdala Ali Abdulraham v Ministry of Lands, Planning, Housing, Mombasa County & 5 others; Mahmood Haiderlu Khimji & another (Interested Parties/Applicants) [2021] KEELC 2041 (KLR)

Environment and Land Court
29 July 2021
4,433 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to jail anyone for contempt because the court orders were either no longer valid, unclear, or aimed at the police, not the accused.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa, delivered by C.K Yano J on 29th July 2021, on a Notice of Motion dated 19th April 2018 filed by the interested parties (the applicants), the registered owners of Plot No. Mombasa/Block XVII/107. They sought committal to civil jail of Abdalla Ali Abdurahman, Khelef Khalifa and James Kinara for contempt of orders issued on 17th February 2017, 3rd March 2017 and 15th June 2017, plus a mandatory and permanent injunction, restoration of a gate and perimeter wall demolished on 20th February 2018, damages of Kshs 575,000/=, and an order compelling the respondent to use a designated access road. The respondent admitted service but denied breach; Khelef Khalifa denied knowledge of or service of the orders; other respondents opposed via grounds of opposition. The court examined each of the three orders. The order of 17th February 2017 was a negative order merely dismissing an application, incapable of being breached. The ex parte orders of 3rd March 2017 were vacated on 16th March 2017 when not extended at the inter partes hearing. The orders of 15th June 2017 were directed to the OCS Central Police Station, who was served and complied by providing security on two occasions; only the OCS could have breached them. The court, applying Ochino v Okombo, Shimmers Plaza and Locabail, also declined the injunctive and damages prayers at the interim stage, holding no special circumstances were shown and quantified damages preclude injunctive relief. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the order of 17th February 2017 was breached

Holding

The order was a negative order incapable of being disobeyed since it merely dismissed the respondent's application with costs

Reasoning

The court examined the order of 17th February 2017 dismissing the respondent's application to maintain the status quo. It found the court did not order any party to do or refrain from doing anything, so there was nothing capable of being wilfully disobeyed. It adopted the respondent's submission that the dismissal was a negative order imposing no obligation on any party.

p. 4
02

Whether the ex parte orders of 3rd March 2017 were still in force

Holding

The ex parte orders were vacated on 16th March 2017 when they were not extended at the inter partes hearing

Reasoning

The court noted the orders were made ex parte in chambers under a certificate of urgency pending inter partes hearing. When the application came up for inter partes hearing on 16th March 2017, the court did not extend the interim orders, so the ex parte orders stood vacated and could not found a contempt application.

p. 4
03

Whether the orders of 15th June 2017 were breached by the three individuals

Holding

The orders were directed to the OCS Central Police Station, who complied, so no committal of the three individuals could be sustained

Reasoning

The order of 15th June 2017 required the OCS Central Police Station to provide security for the restoration of the gate and wall. Service on the OCS was proven by affidavit, and the applicants themselves acknowledged that security was provided on two occasions. Since the orders were directed to the OCS and he complied, the committal of Abdalla, Khalef Khalifa and James Kinara could not be sustained.

p. 5
04

Whether the mandatory and permanent injunction and restoration and damages prayers could be granted at the interim stage

Holding

Prayers 3, 4, 5 and 6 failed: no special circumstances justified a mandatory injunction, quantified damages preclude injunctive relief, and a permanent order cannot issue on an interim application

Reasoning

Applying Locabail International Finance Ltd v Agroexport, the court held a mandatory injunction requires special circumstances and a high degree of assurance. The applicants showed none, and by quantifying damages at Kshs 575,000/= they demonstrated damages would be an adequate remedy. A permanent injunction and a determination on the designated access road went to the root of the suit and had to await trial.

p. 5

Legal principles established

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  • A negative order, merely dismissing an application, is not capable of being disobeyed
  • Ex parte interim orders not extended at the inter partes hearing stand vacated
  • The court will only punish contempt where the terms of the order were clear and unambiguous and the contemnor had proper notice
  • A mandatory injunction ought not to be granted on an interlocutory application absent special circumstances and a high degree of assurance
  • Once damages can be quantified, the court cannot issue an injunction

Court orders

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  1. 1.The Notice of Motion dated 19th April 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 51; Order 40 Rule 3(1)
  • Civil Procedure ActSections 1A, 1B, 3A and 27
  • Environment and Land Court ActSection 13(7); Sections 7 and 19
  • Contempt of Court Act No. 46 of 2016Sections 4, 5 and 28
  • Evidence ActSections 78, 78A and 106B
  • Judicature ActSection 5
  • Physical and Land Use Planning ActSections 57 and 58

Cases cited (8)

  • Ochino and another V Okombo and 4 others
    (1989) KLR
  • Mutitika V Baharini Farm Ltd
    Civil Appeal No. 24 of 1985
  • Cecil Miller V Jackson Njeru & another
    (2017) eKLR
  • Nguruman Limited V Jan Bonde Nielsen & 2 others
    CA No. 77 OF 2012
  • Mwangi Mangondu V Nairobi City Commission
    Civil Appeal No. 95 of 1988
  • Shimmers Plaza Limited V National Bank of Kenya Limited
    (2015) eKLR
  • Locabail International Finance Ltd. V. Agroexport and others
    [1986] 1 ALL ER 901
  • Abdalla A. Abdulrahman V Aliya Apartment, Mohamed Khalif and another
    Mombasa HCCC No. 206 of 2002
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 and Order 40 Rule 3(1) of the Civil Procedure Rules, Section 13(7) of the Environment and Land Court Act, and Sections 4, 5 and 28 of the Contempt of Court Act No. 46 of 2016

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, "Abdala Ali Abdulraham v Ministry of Lands, Planning, Housing, Mombasa County & 5 others; Mahmood Haiderlu Khimji & another (Interested Parties/Applicants) [2021] KEELC 2041 (KLR)", Case Analysis (2021). Mombasa HCCC No. 206 of 2002 (in relation to the Notice of Motion dated 19th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2041/eng@2021-07-29

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