Vector Projects Limited & another v Sweetland Holdings Limited [2022] KEELC 379 (KLR)
The bottom line
#Kenya's High Court struck out tenants' bid to jail their landlord for contempt, ruling a company cannot be imprisoned—directors must be sued personally.
What this practically means
#Executive summary
#Key legal issues
#Whether the Landlord's objection met the Mukisa Biscuits threshold for a preliminary objection
The court held that the grounds raised were pure points of law arising by clear implication from the pleadings and capable of disposing of the application in limine, and therefore qualified as a proper preliminary objection.
Applying the binding Court of Appeal precedent in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, the judge found the objection rested solely on points of law - namely the competence of citing a corporate entity as a contemnor and compliance with section 5 of the Judicature Act - without requiring the ascertainment of facts, and so it could dispose of the application at the threshold stage.
Whether a corporate body can be committed to civil jail for contempt
A corporate entity cannot be cited as a contemnor or committed to civil jail; the proper course was to lift the corporate veil and proceed against the directors personally, which the Applicants had not done.
The prayer sought committal to civil jail, but the Respondent is a body corporate and its directors were not parties in their personal capacity. A company cannot itself do acts warranting committal; committal to civil jail applies only to natural persons. The Applicants' belated intention to amend and add the directors under Order 1 Rule 10 came too late, consistent with the Supreme Court's disapproval of filing documents improperly and seeking ex post facto endorsement.
Whether the contempt application offended section 5 of the Judicature Act
Section 5 of the Judicature Act governs contempt in Kenya after the nullification of the Contempt of Court Act, 2016, and the applicable procedure is that in Part 81 of the English Civil Procedure Rules, which the application did not follow.
Relying on Christine Wangari Gachege v Elizabeth Wanjiru Evans, the court noted that after the Contempt of Court Act was nullified in Kenya Human Rights Commission v Attorney General, contempt procedure is governed by Part 81 of the English Civil Procedure Rules as incorporated through section 5 of the Judicature Act. An application for breach of an order must be by application notice setting out numerically each alleged act of contempt, a requirement the Applicants' notice of motion did not satisfy.
Legal principles established
#- A preliminary objection consists of a point of law which has been pleaded or arises by clear implication out of the pleadings and which, if argued as a preliminary point, may dispose of the suit.
- A body corporate cannot be cited as a contemnor nor committed to civil jail; contempt proceedings against it require first lifting the corporate veil and proceeding against the directors in their personal capacities.
- Following the nullification of the Contempt of Court Act, 2016, contempt of court proceedings in Kenya are governed by section 5 of the Judicature Act and the procedure set out in Part 81 of the Civil Procedure Rules of England and Wales as explained in Christine Wangari Gachege.
- Courts do not favour parties filing documents improperly and then seeking ex post facto endorsement by the Court; misjoinder cannot be cured at a late stage to salvage a defective contempt application.
Court orders
#- 1.The Landlord's Preliminary Objection dated 18th January 2022 is upheld.
- 2.The Tenants/Applicants' application dated 5th November 2021 is struck out.
- 3.Costs of the application awarded to the Landlord/Respondent.
- Jurisdiction invoked
- Article 165(1) of the Constitution of Kenya and Section 10(1), (2)(a) of the High Court (Organization and Administration) Act, 2015 (as invoked by the Applicants); Section 5 of the Judicature Act for contempt jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vector Projects Limited & another v Sweetland Holdings Limited [2022] KEELC 379 (KLR)", Case Analysis (2022). Misc. Application No. E1378 of 2021 (arising from Tribunal Case No. E322 of 2021, Business Premises Rent Tribunal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/379/eng@2022-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.