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ELCDismissedNot stated in judgment· [2021] KEELC 2193 (KLR)

Dynamic Sisters Enterprises Limited v Amboseli Court Limited & 11 others [2021] KEELC 2193 (KLR)

Environment and Land Court
21 July 2021
KBK. BOR
1,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court refused to jail developers for contempt because the landowner could not prove who was building or that they were properly served with the order.

What this practically means

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Executive summary

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The Plaintiff applied by notice of motion dated 21/1/2021 for the 3rd to 8th Defendants, the OCS and OCPD of Kayole Police Station and the Inspector General of Police to be committed to civil jail for six months for contempt of an order issued on 26/11/2020 (and extended on 15/2/2021) restraining construction on L.R. Nos. 15400/376, 379, 380, 383, 384 and 387. The Plaintiff, through the affidavit of its director Nancy Wairimu Kiruga, relied on photographs showing construction at foundation stage when the order issued and at an advanced stage later, together with an affidavit of service sworn by Lawrence Maanzo Mutua. The Defendants, through Joseph Mwangi Karanja, denied trespass, asserted title to L.R. No. 11379/3 held since 1970, questioned the Plaintiff's title in light of an NLC public notice of 2/12/2015, and noted several pending suits over the same land. The 9th Defendant denied service and any specific acts of disobedience, and argued the application was fatally defective for resting on the invalidated Section 5 of the Contempt of Court Act. The court found the affidavit of service defective under Order 5 Rule 15 because the process server did not name the person identifying those served, and held that the Plaintiff failed to link any Defendant to the ongoing construction, which could be the work of other claimants. The court declined the orders sought, with costs in the cause, and observed the related suits should be heard by the same court to avoid conflicting decisions.

Key legal issues

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01

Proper service of court orders as a prerequisite to contempt proceedings

Holding

Service on the 3rd to 8th Defendants was doubtful because the process server did not name the person who identified the Defendants

Reasoning

The process server deponed he was accompanied by a director of the Plaintiff but did not give the director's name or state that the director identified the persons served. Order 5 Rule 15 requires the affidavit of service to indicate the name and address of the identifying person. In the circumstances the court found proper service doubtful.

p. 2
02

Causal link between the alleged contemnors and the disobedience

Holding

The Plaintiff failed to prove any link between the Defendants and the ongoing construction

Reasoning

The Plaintiff showed by photographs that construction had progressed but did not demonstrate which Defendant was carrying out which structure. The suit land was disputed with several pending cases, and other parties with an interest in the land could be the ones continuing construction.

p. 2

Legal principles established

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  • An affidavit of service must indicate the name and address of the person identifying the persons served (Order 5 Rule 15)
  • Contempt requires proof that the person cited was responsible for the disobedience; construction in a disputed area cannot simply be attributed to a party

Court orders

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  1. 1.The orders sought in the application dated 21/1/2021 are declined
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Contempt of Court ActSection 5
  • Civil Procedure RulesOrder 5 Rule 15

Cases cited (1)

  • Jacinta Njeru Kaitha v David K. Kanyiri
    [2015] eKLR
Jurisdiction invoked
Inherent jurisdiction to punish contempt of court; application dated 21/1/2021 (the judgment does not cite a specific constitutional/statutory grant)

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, "Dynamic Sisters Enterprises Limited v Amboseli Court Limited & 11 others [2021] KEELC 2193 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2193/eng@2021-07-21

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