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ELCDismissedTenant/Applicant's Notice of Motion dated 27th May, 2020 (arising from BPRT Tribunal Case No. 60/2020 Nakuru)· [2022] KEELC 1898 (KLR)

Leo Investment Limited t/a Mara Concord Game Lodge v Samson Ololmaitai & 3 others [2022] KEELC 1898 (KLR)

Environment and Land Court (Business Premises Rent Tribunal jurisdiction - Narok)
31 January 2022
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail landlords for ignoring tribunal orders because the tenant could not prove the orders were personally served.

What this practically means

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Executive summary

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This ruling by Mbogo C.G, J, delivered at Narok on 31st January 2022, determined a Notice of Motion dated 27th May 2020 in which the Tenant/Applicant sought committal of the 1st, 2nd and 3rd Landlords/Respondents to civil jail for contempt of orders issued on 26th March 2020 by Hon. Chairman Mbichi Mboroki of the Business Premises Rent Tribunal in Tribunal Case No. 60/2020 Nakuru, which restrained the Respondents from entering, occupying, leasing or operating the Mara Concord Game Lodge and from interfering with the Applicant's goods. The Applicant alleged that the orders and penal notice were personally served on 1st April 2020 by a court process server, but the Respondents disregarded them and occupied the lodge. The Respondents filed a preliminary objection, which was dismissed, and a replying affidavit disputing service, asserting that no personal service was effected, that movement restrictions were in force on 1st April 2020, and that the Applicant was a stranger with no tenancy relationship with them. The court framed two issues: whether the Respondents were in contempt, and whether the orders sought were merited. Applying section 5 of the Judicature Act following the unconstitutionality of the Contempt of Court Act, the court held that contempt is quasi-criminal and must be proved beyond reasonable doubt, and that personal service of the order with a penal notice is generally required before committal. Not satisfied that proper service was effected, and noting the Applicant had failed to address disputed service squarely, the court dismissed the application with costs to the Landlords/Respondents.

Key legal issues

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01

Whether the Landlords/Respondents were in contempt of the BPRT orders of 26th March 2020

Holding

No contempt was established because the Applicant failed to prove personal service of the orders and penal notice to the required standard

Reasoning

One of the essential elements of civil contempt is that the defendant had knowledge of, or proper notice of, the terms of the order. The Respondents disputed service. The affidavit of service did not satisfy the court, and when service was disputed the Applicant failed to address the court clearly on whether and how service was effected, relying instead on alleged knowledge. Doubt therefore remained, and since the standard of proof is beyond reasonable doubt, contempt was not made out.

p. 4
02

Whether the orders sought by the Tenant/Applicant were merited

Holding

The application was dismissed for lack of merit with costs to the Landlords/Respondents

Reasoning

Given the failure to prove service to the required standard, the committal orders and notices to show cause could not issue. The court found no merit in the application and dismissed it with costs.

p. 4
03

The applicable law and standard of proof in contempt proceedings

Holding

Section 5 of the Judicature Act applies, and contempt, being quasi-criminal, must be proved beyond reasonable doubt

Reasoning

With the Contempt of Court Act declared unconstitutional, contempt powers flow from section 5 of the Judicature Act, which preserves the powers of the High Court of Justice in England. The four elements of civil contempt include a clear and unambiguous order, knowledge or proper notice, breach, and deliberate conduct, all proved beyond reasonable doubt because personal liberty is at stake.

p. 4

Legal principles established

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  • As a general rule, no order of court requiring a person to do or abstain from doing an act may be enforced in contempt proceedings unless a copy of the order has been personally served on that person with a penal notice endorsed
  • Contempt of court is quasi-criminal in nature and the elements of contempt must be proved beyond reasonable doubt, a standard higher than that in civil cases
  • Following the declaration of unconstitutionality of the Contempt of Court Act, the applicable law on contempt applications in Kenya is section 5 of the Judicature Act

Court orders

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  1. 1.The Tenant/Applicant's Notice of Motion application dated 27th May, 2020 is dismissed
  2. 2.Costs of the application to the Landlords/Respondents

Authorities

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Legislation

  • Judicature ActSection 5(1)
  • Rules of the Supreme Court of England, 1965Order 52 Rule 2(2)
  • Civil Procedure ActSection 3A
  • English Civil Procedure RulesRule 81.1(1)

Cases cited (21)

  • Kenya Human Rights Commission vs Attorney General & Another
    [2018]eKLR
  • Republic vs Returning Officer of Kamkunji Constituency & the Electoral Commission of Kenya
  • Carey vs Laiken
    [2015]SCC17
  • Hon. Martin Nyaga Wambora & Another vs Justus Kariuki Mate & Another
    [2014]eKLR
  • Nyamogo & Another vs Kenya Posts and Telecommunications Corporation
    (1994) KLR 1
  • Ochino & Another vs Okombo & 4 Others
    (1989) KLR 165
  • Kenya Tea Growers Association vs Francis Atwoli & Others
  • Husson vs Husson
    (1962) 3 All E.R. 1056
  • Ronson Products Ltd vs Ronson Furniture Ltd
    (1966) RPC 497
  • Davy International Ltd vs Tazzyman
    (1997) 1 WLR 1256
  • Heatons Transport (St Helens) Ltd vs Transport and General Workers Union
    (1973) AC 15
  • Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 Others
    [2014]eKLR
  • Molly Wambui Kiragu (suing as Administrator of the Estate of the late Samuel Kiragu Muchuki) vs Governor-Nairobi City County & Another
    [2018]eKLR
  • Anne Barongo vs Awliyo Abdi Ahmed & 2 Others
    [2015]eKLR
  • Anastacia Wagiciengo vs Ezekiel Wafula
    [2018]eKLR
  • CFC Financial Services vs Juja Road Fancy Store Limited
    [2017]eKLR
  • Patrick Wanyonyi Munialo -v- County Executive Committee (CEC) Member for Water & Natural Resources Bungoma County & 3 others; Nzoia Water Services Co. Ltd (Interested Party); Kennedy Kilali Wekesa & 2 others (Contemnor)
    [2019]eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016]eKLR
  • Mwangi Wang'ondu vs. Nairobi City Council
    Appeal No. 95 of 1998
  • Wycliffe Sayia Okungu v Joel Kayeri Risamira & 3 others
    [2016]eKLR
  • Re Breamblevale Limited
    [1969] 3 ALL ER 1062
Jurisdiction invoked
Section 5(1) of the Judicature Act, Order 52 Rule 2(2) of the Rules of the Supreme Court of England 1965 and Section 3A of the Civil Procedure 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, "Leo Investment Limited t/a Mara Concord Game Lodge v Samson Ololmaitai & 3 others [2022] KEELC 1898 (KLR)", Case Analysis (2022). Tenant/Applicant's Notice of Motion dated 27th May, 2020 (arising from BPRT Tribunal Case No. 60/2020 Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1898/eng@2022-01-31

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