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ELCPartially AllowedELC suit - Notice of Motion dated 21st April 2017 and Notice of Motion dated 27th February 2017· [2021] KEELC 3627 (KLR)

Golden Lion Estate Company Limited v James Onunga & 4 others [2021] KEELC 3627 (KLR)

Environment and Land Court
22 April 2021
3,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt application because the plaintiff couldn't prove the orders were personally served or deliberately disobeyed.

What this practically means

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Executive summary

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The court dealt with two applications heard together: the plaintiff's Notice of Motion dated 21st April 2017 seeking committal of the 1st, 2nd and 3rd defendants for contempt of interim injunction orders issued on 27th January 2017 and 24th February 2017, and the 3rd defendant's (deceased) Notice of Motion dated 27th February 2017 seeking to set aside those orders and leave for the estate to defend the suit. On the estate's application, the court held that Neeraj Jayatilal Kalaiya, claiming to act as personal representative, had not annexed any grant of letters of administration and therefore lacked locus standi; further, his own affidavit showed the deceased had disposed of the suit property to the 2nd defendant, so the estate would suffer no prejudice. Prayer (3) (setting aside the orders) was declined as an abuse of process, while prayer (4) (leave to defend) was allowed conditionally upon proof of representation. On contempt, the court applied the Mutitika standard - proof higher than a balance of probabilities, almost but not exactly beyond reasonable doubt. It found the photographs inconclusive as to when structures were erected, noted the absence of particulars of disobedience, and found no proof of personal service on the alleged contemnors. The contempt application was dismissed with costs abiding the outcome of the main suit, and all parties were directed to comply fully with the orders of 27th January 2017. Judgment delivered by L. Komingoi, J, in Nairobi on 22nd April 2021.

Key legal issues

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01

Locus standi of the Estate's applicant

Holding

The applicant lacked locus standi as no grant of letters of administration ad litem was proved

Reasoning

The supporting affidavit claimed letters of administration ad litem in Nairobi Succession Cause No. 228 of 2017 but no grant was annexed, and the applicant never responded to the plaintiff's challenge. Following Court of Appeal authority, a litigant is clothed with locus standi only upon obtaining a grant; without it, the application is incompetent.

p. 4
02

Whether the contempt application met the standard of proof

Holding

It did not; the plaintiff failed to prove disobedience to the quasi-criminal standard and failed to prove personal service

Reasoning

The photographs annexed could not show when structures were erected relative to the orders of 24th February 2017, and no particulars of acts of disobedience were given. Service on the 1st defendant and the 3rd defendant's personal representative was not proved, and the heightened Mutitika standard was not met.

p. 5
03

Whether the 3rd defendant's estate had any interest in the suit property

Holding

No; the 3rd defendant had disposed of the property before the suit, so no prejudice would arise from the orders standing

Reasoning

The applicant deponed that after the 3rd defendant's demise he became aware the deceased had concluded contracts disposing of the suit property to the 2nd defendant. Having relinquished interest, the estate stood to suffer no hardship, and the application to vacate the injunction was an abuse of process.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
  • A litigant without a grant of letters of administration lacks locus standi to act for a deceased's estate
  • Obedience of court orders is mandatory and not optional

Court orders

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  1. 1.Notice of Motion dated 21st April 2017 (contempt) dismissed
  2. 2.Prayer (3) of the Notice of Motion dated 27th February 2017 declined
  3. 3.Prayer (4) of the Notice of Motion dated 27th February 2017 allowed upon proof that the applicant is a personal representative of the Estate of the 3rd defendant
  4. 4.Costs of the contempt application to abide the outcome of the main suit
  5. 5.The orders granted on 27th January 2017 and issued on 24th February 2017 ought to be complied with fully by all parties to the suit

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Constitution of KenyaArticle 159
  • Civil Procedure Rules, 2010Order 40 Rule 3; Order 22 Rules 51-54; Order 45 Rules 1 and 2; Order 51; Sections 1A, 1B, 3, 3A, 80, 63
  • UK Civil Procedure Rules, 1999Rule 81.4

Cases cited (28)

  • Wardpa Holdings Ltd & Others vs Emmanuel Waweru Lima Mathai & Another
    [2016] eKLR
  • Sheila Nkatha Muthee vs Alphonce Mwangemi Munga & Another
    [2016] eKLR
  • Kenya Tea Growers Association vs Francis Atwoli & 5 Others
    [2012] eKLR
  • Clarke and Others vs Chadburn & Others
    [1985] 1 ALL ER (PC) 211
  • Mutitika vs Baharini Farm Ltd
    [1985] KLR 229
  • Mwangi HC Wangondu vs Nairobi City Commission
    Nairobi Civil Appeal No 95 of 1998
  • American Cyanamid Co vs Ethicon Ltd
    [1975] ALL ER 504
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Julius Mogaka Gekonde t/a E-Smart Technical College vs Ouro Power Ltd & Another
    [2016] eKLR
  • Pricilla Wanja Kibui vs James Kiongo Kibui & Another
    [2014] eKLR
  • Republic vs National Enviroment Tribunal & Another
    [2013] eKLR
  • Shah vs Mbogo & Another
    [1967] EA 116
  • Esther Wamaitha Njihia & 2 Others vs Safaricom Ltd
    [2014] eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Bahadulari Ebrahim Shamii vs AI Noor Jamal & 2 Others
    Civil Appeal No 210 of 1997
  • Football Kenya Federation vs Kenya Premier League Ltd & 4 Others
    [2015] eKLR
  • Richard Nchapai Leiyangu vs IEBC & 2 Others
  • Nyamogo vs Kenya Post & Telecommunication Corporation
    [1994] KLR 1
  • Sam Nyamweya & 3 Others vs Kenya Premier Ltd & 2 Others
    [2015] eKLR
  • Exparte Langley
    1879, 13 ChD/10 (CA)
  • Shimmers Plaza Ltd vs National Bank of Kenya
    [2015] eKLR
  • Miguna Miguna vs Hon. AG
    [2018] eKLR
  • Otieno vs Ougo & Another
    [1986-1989] EALR 468
  • Rajesh Pranjivan Chadasam vs Sailesh Pranjivan Chadusama
    [2014] eKLR
  • Virginia Edith Wamboi Otieno & Joash Ochieng Ougo & Another
    [1982-99] 1 KAR
  • Morjaria vs Abdalla
    [1984] KLR 490
  • Trouistik Union International & Another vs Jane Mbeyu & Another
    Civil Appeal No 145 of 1990
  • Alfred Njau & Others vs City Council of Nairobi
    [1982-88] 1 KAR 299
Jurisdiction invoked
Section 5(1) of the Judicature Act; Order 40 Rule 3 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya

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, "Golden Lion Estate Company Limited v James Onunga & 4 others [2021] KEELC 3627 (KLR)", Case Analysis (2021). ELC suit - Notice of Motion dated 21st April 2017 and Notice of Motion dated 27th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3627/eng@2021-04-22

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