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ELCDismissedNot stated in the judgment (Machakos ELC judicial review matter; Notice of Motion dated 12th February, 2020)· [2022] KEELC 1463 (KLR)

Erdemann Property Limited v Export Processing Zones Authority & 2 others; London Distillers (K) Limited & 3 others (Interested parties) [2022] KEELC 1463 (KLR)

Environment and Land Court
14 February 2022
COChristine Ochieng
2,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 12th February 2020, the 1st Interested Party sought the citation of Nancy Mwireria, an Advocate, and John Zeyun Yang, director of Erdemann Property Limited, for contempt of court over media statements made on 30th January 2020 alleging that London Distillers (K) Ltd was emitting hazardous effluent. The applicant sought committal to civil jail for at least six months, warrants of arrest, publication of an apology in three daily newspapers, and a recommendation to the Law Society of Kenya for disciplinary proceedings against the Advocate. The application was opposed through grounds of opposition and a replying affidavit by Zeyun Yang, who contended that court proceedings are public, that the application failed to meet the required standard of proof, and that the publications were not intended to bring the court into disrepute. The court framed a single issue: whether the two named persons were in contempt for comments made to the media about the proceedings. Relying on the four-element test for civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi, the court held that the burden lay on the applicant and was not discharged: court cases are public absent an express order restricting reporting, the applicant failed to furnish some recordings, and no willful or mala fides disobedience of any court order was shown. The court also held that the application, insofar as it concerned interference with the administration of justice, fell under Rule 81.12 and required prior leave. Contempt proceedings being criminal in nature, the near-criminal standard of proof was not met. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the media statements made by the Advocate and the director amounted to contempt of court

Holding

No contempt was proved; the burden lay on the 1st Interested Party and was not discharged

Reasoning

The court noted the proceedings were public and there was no express order restricting media reporting. The 1st Interested Party did not furnish some of the recordings. Contempt proceedings are criminal in nature, requiring proof to a near-criminal standard, and the applicant failed to demonstrate willful, mala fides disobedience of any court order or deliberate violation of the court's dignity or authority.

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02

Whether the committal application was properly brought without leave of court

Holding

Leave ought to have been sought; the application concerned interference with the administration of justice under Rule 81.12

Reasoning

Relying on Kaplan & Stratton Advocates v Chief Magistrate's Court, the court held that prayers touching interference with the administration of justice fall under Rule 81.12 of the UK Civil Procedure (Amendment No.2) Rules 2012, applicable via section 5 of the Judicature Act, and such committal applications require prior leave of the court.

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Legal principles established

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  • Court cases are public unless there is an express order stopping the media from reporting them
  • The standard of proof in contempt proceedings is higher than the balance of probabilities and almost beyond reasonable doubt
  • Committal applications for interference with the due administration of justice require leave of court before filing, per Rule 81.12 of the UK Civil Procedure (Amendment No.2) Rules 2012 as applied by section 5 of the Judicature Act

Court orders

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  1. 1.The Notice of Motion application dated 12th February, 2020 is dismissed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Environment and Land Court ActSection 29
  • Evidence ActSection 109
  • Judicature ActSection 5
  • UK Civil Procedure (Amendment No.2) Rules 2012Rule 81.12

Cases cited (11)

  • Equip Agencies Limited Vs Credit Bank Limited
    Nairobi HCCC No. 773 of 2004
  • Teachers’ Service Commission V Kenya National Union of Teachers & 2 Others
    Petition No. 23 of 2013
  • Samson K. A. Tim V D. M Machage
    (2019) eKLR
  • Kaplan & Stratton Advocates V Chief Magistrate’s Court & Another
    (2018) eKLR
  • Christine Wangari Chege V Elizabeth Wanjiru Evans & Others
    (2014) eKLR
  • Terry Wijenje & 5 Others V Directline Assurance Company Limited & 6 others
    (2020) eKLR
  • E. M V K. F. M. & N. G. K
    (2020) eKLR
  • JGK V FWK
    (2019) eKLR
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR
  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
  • Samuel M. N. Mweru & Others V National Land Commission & 2 Others
    (2020) eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act (contempt jurisdiction), with 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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Cite this brief

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Cite this brief

Caselaw, "Erdemann Property Limited v Export Processing Zones Authority & 2 others; London Distillers (K) Limited & 3 others (Interested parties) [2022] KEELC 1463 (KLR)", Case Analysis (2022). Not stated in the judgment (Machakos ELC judicial review matter; Notice of Motion dated 12th February, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1463/eng@2022-02-14

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