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ELCDismissedNot stated in judgment· [2021] KEELC 2917 (KLR)

Etore John Akaran & 4 others v Ellen Properties & 4 others [2021] KEELC 2917 (KLR)

Environment and Land Court
9 June 2021
CYC.K. YANO
1,126 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa threw out a contempt application because the party seeking jail for a company director never proved she was personally served with the court order.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by notice of motion dated 26th January 2021 under Order 40 Rules 3(1), 3 and 4(1) of the Civil Procedure Rules and Sections 1A(3) and 63 of the Civil Procedure Act, seeking the committal to civil jail of the 1st defendant's director, Margaret Muthoni Ndungu, for disobeying orders issued on 19th/20th January 2021 restraining demolition of structures on the suit property pending the hearing of the main suit. The plaintiffs alleged that on the night of 23rd January 2021 and again on 3rd May 2021 the 1st defendant demolished their structures. The 1st defendant, through a replying affidavit sworn by Ms Ndungu, denied disobedience, asserting that the nine houses on the property remained intact and challenging the provenance of the photographs annexed. The court identified a single issue: whether the 1st defendant's director was in contempt of the orders of 20th January 2021. Applying Order 40 Rule 3(1) and Section 5 of the Judicature Act (as reaffirmed in Samuel M. N. Mweru v National Land Commission), the court held that the applicant must prove the order was unambiguous, binding, and properly served. While the orders were clear, there was no evidence of personal service on Ms Ndungu - no service stamp and no affidavit of service - and she was not a party to the suit; the plaintiffs would have had to lift the corporate veil. Given the penal nature of contempt, the burden of proof beyond a shadow of doubt was not discharged. The application was dismissed with each party bearing their own costs.

Key legal issues

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Whether the elements of contempt, particularly proper service, were proved against Margaret Muthoni Ndungu

Holding

The application failed because proper personal service of the order was not proved and the director was not a party to the suit

Reasoning

The court accepted that the orders of 20th January 2021 were clear, but found no stamp evidencing personal service on Margaret Muthoni Ndungu and no affidavit of service on record. It further noted that she was not a party to the suit and that the plaintiffs would have needed to lift the corporate veil to reach the directors. Contempt being penal, the burden of proof was not discharged.

p. 2

Legal principles established

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  • To succeed in contempt proceedings the applicant must prove the order was unambiguous and binding, and that it was properly served on the respondent
  • Section 5 of the Judicature Act still governs contempt of court proceedings in Kenya
  • Contempt proceedings being penal in nature, the applicant bears a heightened burden of proof

Court orders

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  1. 1.The plaintiffs' application dated 26th January 2021 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3(1), 3 and 4(1)
  • Civil Procedure ActSection 1A(3)
  • Civil Procedure ActSection 63
  • Judicature ActSection 5

Cases cited (1)

  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Order 40 Rule 3(1), 3 and 4(1) of the Civil Procedure Rules; Sections 1A(3) and 63 of the Civil Procedure Act; Section 5 of the Judicature Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Etore John Akaran & 4 others v Ellen Properties & 4 others [2021] KEELC 2917 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2917/eng@2021-06-09

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