Leo Investment Limited t/a Mara Concord Game Lodge v Samson Ololmaitai & 3 others [2022] KEELC 1898 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Landlords/Respondents were in contempt of the BPRT orders of 26th March 2020
No contempt was established because the Applicant failed to prove personal service of the orders and penal notice to the required standard
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.
Whether the orders sought by the Tenant/Applicant were merited
The application was dismissed for lack of merit with costs to the Landlords/Respondents
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.
The applicable law and standard of proof in contempt proceedings
Section 5 of the Judicature Act applies, and contempt, being quasi-criminal, must be proved beyond reasonable doubt
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.
Legal principles established
#- 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
#- 1.The Tenant/Applicant's Notice of Motion application dated 27th May, 2020 is dismissed
- 2.Costs of the application to the Landlords/Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.