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ELCPartially AllowedNot stated in the extract· [2022] KEELC 1509 (KLR)

Goolbanu Shahnawaz Wissanji & another v Abdi Godana Dida & another [2022] KEELC 1509 (KLR)

Environment and Land Court
8 February 2022
3,962 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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The plaintiffs filed suit on 9th July 2021 over property L.R No. 209/8998 together with a Notice of Motion dated 8th July 2021 seeking a temporary injunction. On 22nd July 2021 the court, after service of hearing notices on the defendants, issued an injunction restraining the defendants from entering, encroaching on, selling, transferring, alienating, developing or otherwise dealing with the suit property. Despite service of that order on the 1st defendant's officials, its advocates, and by affixation on the structure on the property, construction continued. The plaintiffs then moved by Notice of Motion dated 26th August 2021 seeking committal of the 1st defendant's current officials - John Mwangi, Alice Wangari and Francis Wambua - to prison for six months, attachment of their property, and enforcement by police. The alleged contemnors opposed the application, contending that the injunction lapsed under Order 40 Rule 4(3) of the Civil Procedure Rules because it was served outside three days, and that they bore no personal responsibility for breaches by the association's over 3000 members. The court held the 22nd July 2021 order was not an ex parte order under Order 40 Rule 4(1) since it was issued at a hearing fixed inter partes after service of notice; hence it had not lapsed. Applying Hardkinson v Hardkinson, Mutitika v Baharini Farm Ltd and Micheal Sistu Mwaura Kamau v DPP, the court found the order clear, served, and breached, and held the officials responsible for contempt by the association's members. The officials were found in contempt; sentencing was deferred for mitigation, with costs of the application to the plaintiffs. Judgment delivered on 8th February 2022 by S. Okong'o J.

Key legal issues

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01

Whether the order of 22nd July 2021 was an ex parte order that lapsed for non-service within three days

Holding

It was not an ex parte order under Order 40 Rule 4(1); it was made at a hearing fixed inter partes after service of notice, so Rule 4(3) did not apply and the order had not lapsed.

Reasoning

The application had been served for inter partes hearing; the respondents and their advocates were served with hearing notices but did not attend on 22nd July 2021. An order given after service but in a party's absence is made outside Order 40 Rule 4(1); hence Rule 4(2) and (3) on the fourteen-day duration and three-day service do not apply, and the order could not have lapsed.

p. 4
02

Whether the officials are personally liable for contempt by association members

Holding

Yes - as elected officials of the 1st defendant, served with the order in that capacity, they bear responsibility for contempt by its officials and members.

Reasoning

The order's terms were clear and served on the contemnors as current officeholders. Construction continued after service and they did not dispute it nor show they alerted those building. Claiming lack of omnipresence or capacity is insufficient; accepting office carries responsibility to ensure compliance.

p. 4
03

Whether contempt was proved to the required standard

Holding

Yes. The order was clear, served, and breach by continued construction was not denied; the officials' responsibility was established.

Reasoning

Applying Mutitika v Baharini Farm and Kamau v DPP, the order was clear and precise, the respondents knew of it, and continued construction was established by photographic evidence and admission. The standard, higher than balance of probabilities, was met, warranting a finding of contempt though sentence awaits mitigation.

p. 4

Legal principles established

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  • Every person against whom a court order is made must obey it unless and until it is discharged; disobedience results in contempt punishable by committal or attachment.
  • Standard of proof in contempt proceedings is higher than balance of probabilities but almost, not exactly, beyond reasonable doubt.
  • Officials of an association bear responsibility for contempt committed by its officials or members where the order was served on them in that capacity.
  • An inter partes order made on a date fixed for hearing after service of notice, albeit in a party's absence, is not an ex parte injunction under Order 40 Rule 4(1) and does not lapse under Rule 4(3).

Court orders

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  1. 1.Finding that John Mwangi, Alice Wangari and Francis Wambua, Chairperson, Vice Chairperson and Secretary respectively of the 1st defendant, Kibarage Slums Association, are in contempt of the order made on 22nd July 2021
  2. 2.The said officials shall appear before the court on a date to be fixed to be heard in mitigation before a sentence is passed
  3. 3.The plaintiffs shall have the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 4(1), (2), (3) and Order 40 Rule 4(3)
  • Societies Act, Chapter 108 Laws of KenyaSection 2
  • Contempt of Court ActSection 4

Cases cited (6)

  • Hardkinson v Hardkinson
    [1952] ALL ER 567
  • Mutitika v Baharini Farm Ltd
    [1985] KLR 227
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
  • Republic v Ahmad Abolfathi Mohammed & Another
  • Jihan Freighters Ltd v Hardware & General Stores Ltd
  • A.B. & Another v R. B.
    [2016] eKLR
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court/Environment and Land Court; Contempt of Court Act cited by the court; Civil Procedure Rules Order 40 Rule 4

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, "Goolbanu Shahnawaz Wissanji & another v Abdi Godana Dida & another [2022] KEELC 1509 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1509/eng@2022-02-08

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