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ELCDismissedNot stated in judgment· [2021] KEELC 2224 (KLR)

Harun Osoro Nyamboki v Kenelec Supplies Limited & 6 others [2021] KEELC 2224 (KLR)

Environment and Land Court
19 July 2021
KBK. BOR
1,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to jail a company director for contempt because the applicant could not prove the disputed containers and waste actually belonged to the defendant.

What this practically means

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Executive summary

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The Plaintiff applied by notice of motion dated 9/5/2019 to cite Joseph K. Claudio, director of the 1st Defendant, for contempt of interim orders issued by Obaga J. on 4/4/2019 restraining the 1st Defendant from encroaching on, obstructing, storing materials on, or interfering with a 6-metre service lane serving L.R No. 209/13557 along Langata Road, Nairobi West, and compelling removal of obstructions to sewerage and storm water lines. The Plaintiff alleged that after service of the order on 15/4/2019 and 16/4/2019, the 1st Defendant deposited waste material and containers on the service lane, undermining the rule of law. The 1st Defendant and Mr. Claudio denied breaching the orders, asserting they had acted obediently and that removal of obstructions was not within their purview; they had also lodged Civil Appeal No. 557 of 2019 against the orders. The Attorney General submitted that disobedience must be wilful and deliberate, that photographs were insufficient proof, and that committal being extreme, alternative measures should be preferred. The court found the clarity of the orders and the contemnor's knowledge undisputed, but held that the Plaintiff failed to prove that the containers belonged to the 1st Defendant or that it deposited the waste, and hence failed to establish deliberate disobedience. Agreeing with the AG that alternative measures should be preferred, the court declined to grant the orders sought. Judgment delivered virtually at Nairobi on 19 July 2021 by K. Bor, Judge.

Key legal issues

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01

Whether the elements of contempt were established against Joseph K. Claudio

Holding

No. While clarity of the order and notice were undisputed, deliberate breach was not proved.

Reasoning

It was not in contention that the orders of Obaga J. of 4/4/2019 were clear and unambiguous, nor that the 1st Defendant and its director knew of them. However, the Plaintiff did not tender evidence that the containers blocking access belonged to the 1st Defendant, nor that it deposited waste on the service lane. Without proof of deliberate breach, committal could not issue.

p. 2
02

Whether committal should be ordered where alternative remedial measures exist

Holding

The court should defer to alternative measures since committal orders are extreme and touch liberty and property.

Reasoning

The AG submitted that committal to civil jail or attachment of property are extreme measures touching constitutional rights to liberty and property, and that where alternative remedies exist the court should defer to them. The court agreed, suggesting the Plaintiff could apply for removal and sale of containers with proceeds applied to clearing debris.

p. 2

Legal principles established

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  • Where alternative measures to remedy contempt exist, the court ought to defer to those other measures because committal touches constitutional rights to liberty and property
  • A party seeking committal for contempt must prove deliberate (wilful) disobedience of a clear order of which the contemnor had notice

Court orders

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  1. 1.The court declines to grant the orders sought in the application dated 9/5/2019
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over contempt of its own orders (not expressly cited in judgment)

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, "Harun Osoro Nyamboki v Kenelec Supplies Limited & 6 others [2021] KEELC 2224 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2224/eng@2021-07-19

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