Wakati Limited v Tiriki Electronic Limited (Miscellaneous Application 75 of 2019) [2021] KEELC 4751 (KLR)
The bottom line
#A Kenyan court refused to punish a company for contempt because the tribunal orders were never validly served, and the applicant's evidence, including photos, was inadmissible.
What this practically means
#Executive summary
#Key legal issues
#Presence of the Respondent when the Tribunal orders were issued
The orders were issued in the presence of the Applicant's advocate only; the deponent of the supporting affidavit lied on oath by alleging otherwise
The court examined the order issued on 2nd April 2019 and confirmed it was issued in the presence of Mr. Kurauka, advocate for the Applicant/Tenant only, with no evidence that the Respondent or its directors were present. The court held the deponent committed perjury and referred to David Omwenga Maobe v Republic on the gravity of perjury, holding that a party who lies on mundane issues cannot be trusted on anything.
Service of the Tribunal orders on the Respondent company
No valid service was effected; service on a caretaker cannot amount to service on a company
The order had been obtained against 'Tiriki Electronicles Limited' while the Respondent is 'Tiriki Electronic Limited', and the affidavit of service showed service effected on one Mr. Kamau, said to be a caretaker. Applying Order 5 rule 3 of the Civil Procedure Rules, the court held service on a corporation must be on the secretary, director or principal officer or by the prescribed alternative modes; service on a caretaker would be a nullity.
Whether contempt of the Tribunal orders was proved
Contempt was not proved; the burden lay on the Applicant and the standard is intermediate, above balance of probability
The Respondent averred the structures were on a pavement forming public space under the Nairobi County Government and were pulled down by the County, an averment uncontroverted by any supplementary affidavit. The photographs annexed had no probative value and no section 106B certificate was availed, rendering them inadmissible under the Evidence Act. The court relied on Katsuri Limited and Gatharia K. Mutikika on the standard of proof.
Legal principles established
#- Service on a body corporate can only be effected on the secretary, director or other principal officer, or in accordance with Order 5 rule 3 of the Civil Procedure Rules; service on a caretaker is a nullity
- Contempt must be proved to an intermediate standard, above balance of probability but below beyond reasonable doubt
- Electronic evidence such as photographs is inadmissible without a certificate under sections 106A and 106B of the Evidence Act
Court orders
#- 1.The Notice of Motion Application dated 2nd May 2019 is dismissed with costs to the Respondents.
- On appeal from
- Business Premises Rent Tribunal
- Order dated 2nd April 2019 (extracted 3rd April 2019)
- Jurisdiction invoked
- Original contempt jurisdiction of the Environment and Land Court in respect of disobedience of a Business Premises Rent Tribunal order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakati Limited v Tiriki Electronic Limited (Miscellaneous Application 75 of 2019) [2021] KEELC 4751 (KLR)", Case Analysis (2021). Notice of Motion Application dated 2nd May 2019 (ELC, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4751/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.