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ELCDismissedNot stated in the judgment text· [2021] KEELC 2232 (KLR)

Electrical Marketing (Wholesale) Limited v Nairobi City County & another; Cinatine Enterprises Limited (Interested Party) [2021] KEELC 2232 (KLR)

High Court (bench sitting as 'K. BOR, JUDGE'; court identity not expressly stated in the text, appeal lies to the Court of Appeal)
9 August 2021
KBK. BOR
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even after proving contempt, a Kenyan party may be sent to receivership instead of civil jail when that alternative remedy can secure compliance.

What this practically means

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Executive summary

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The Appellant moved the court by application dated 18/12/2020 seeking to cite the 2nd and 3rd Respondents for contempt of orders issued on 3/11/2020, committal to civil jail or a fine of up to Kshs. 20,000,000, eviction from LR No. 209/8323 under police supervision, and mesne profits. The 3/11/2020 orders had granted the Respondents stay of execution of the judgment of 15/7/2019 on condition that rent collected from the Suit Property be deposited into a joint interest-earning account in the names of the advocates, such sums to abide the outcome of an appeal to the Court of Appeal. The Appellant, through Sunil K. Patel's affidavit, showed that the Respondents ignored letters of 12/10/2020, 15/10/2020 and 10/11/2020 and declined to surrender or disclose rent. Gopal Harish Vekaria replied that the Respondents had sold the property to third parties who leased it out, that they neither occupied the property nor received rent, and that evicting occupiers would render the appeal nugatory. The court framed two issues: whether to cite the Respondents for contempt and whether eviction should issue. It found the orders clear, unambiguous, binding, known to and deliberately breached by the Respondents, who had not sought review. Nonetheless, exercising its committal jurisdiction with great reluctance, the court held the Appellant could secure compliance by seeking appointment of a receiver under Order 41 to manage the property and deposit rent. All orders sought in the application dated 18/12/2020 were declined. Judgment delivered virtually at Nairobi on 9 August 2021 by K. Bor, J.

Key legal issues

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01

Whether the 2nd and 3rd Respondents were in contempt of the orders of 3/11/2020 requiring rent from the Suit Property to be deposited into a joint interest-earning account

Holding

The elements of contempt were met - the orders were clear, binding, known to and deliberately breached by the Respondents - but committal was nonetheless declined as a matter of discretion

Reasoning

The court found the orders of 3/11/2020 clear and unambiguous and binding, that the Respondents had knowledge of them and had deliberately acted in breach. However, the court held its committal jurisdiction must be exercised with great reluctance where another compliance mechanism exists, and identified receivership under Order 41 as the appropriate alternative route for the Appellant.

p. 2
02

Whether eviction orders should issue against the 2nd and 3rd Respondents from the Suit Property

Holding

Eviction was refused; the court directed the Appellant to the remedy of appointing a receiver to manage the property and collect rent

Reasoning

The court noted Order 41 of the Civil Procedure Rules allows appointment of receivers who may manage, protect or improve property and collect rent and profits. Since compliance with the 3/11/2020 orders could be secured through receivership, the court declined contempt sanctions and all orders sought in the application dated 18/12/2020.

p. 2

Legal principles established

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  • The four elements of civil contempt are: the order is clear and unambiguous; it is binding on the respondent; the respondent has knowledge of its terms; and the respondent deliberately breached it
  • The court's contempt/committal jurisdiction must be exercised carefully and with great reluctance where an alternative mode of securing compliance exists
  • A party who does not apply for review or setting aside of orders remains bound by them and cannot resist contempt on the basis of its own interpretation

Court orders

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  1. 1.The court declines to grant the orders sought in the application dated 18/12/2020
  2. 2.Judgment delivered virtually at Nairobi on 9th August 2021

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 29
  • Civil Procedure RulesOrder 41 (appointment of receivers)
  • Civil Procedure ActSection 38(a) and (f)

Cases cited (4)

  • Katsuri Limited v Kapurchand Depar Shah
    [2016] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Kenya Tea Growers Association v Francis Atwoli and 5 Others
    [2012] eKLR
  • Marico Ndwiga v Edith Muthanje
    [2020] eKLR
Jurisdiction invoked
Inherent contempt jurisdiction of the court over disobedience of its orders, read with the Civil Procedure Act (Section 38(a) and (f)) and the Civil Procedure Rules (Order 22 Rule 29; Order 41 on receivers), as urged by the parties

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, "Electrical Marketing (Wholesale) Limited v Nairobi City County & another; Cinatine Enterprises Limited (Interested Party) [2021] KEELC 2232 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2232/eng@2021-08-09

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