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ELCDismissed· [2022] KEELC 2008 (KLR)

Aniket Property and Investment v Hamadi Juma Mwakibiro & 7 others [2022] KEELC 2008 (KLR)

Environment and Land Court of Kenya
19 January 2022
6,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court dismissed a contempt application because the plaintiff couldn't prove the defendant was properly served with the court orders he allegedly disobeyed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Naikuni J) on a Notice of Motion dated 19th September 2018 by which the Plaintiff sought to have the 1st Defendant cited for contempt of interim injunction orders made on 11th July 2012 and 5th October 2012 restraining interference with land parcel KWALE/DIANI BEACH/203 and its sub-divisions, and for demolition of buildings allegedly erected in breach, at his expense. The 1st Defendant opposed, contending the orders were never served or produced, that Order 40 Rule 3 does not provide for demolition, and that the supporting deponent (Vijay Lakhani) had died, denying him the right to cross-examine. Framing three issues, the court noted the Contempt of Court Act 2016 was nullified in Kenya Human Rights Commission v Attorney General, reverting to the Judicature Act. It applied the three-element test for contempt (terms of order, knowledge, breach) and the higher-than-civil standard of proof from Gatharia Mutitika v Baharini Farm and Sheila Cassatt Issenberg. The court found no extracted order or affidavit of service on record, so service of the order's terms was unproved. A locus in quo visit on 12th November 2021 revealed the developed parcels belonged to third parties, not the 1st Defendant, rendering the Lakhani averments unfactual. The demolition prayer was held premature, not grounded in Order 40 Rule 3, and a potential violation of Article 40(1) and (2) property rights. The application was dismissed, the part-heard suit to continue on 19th and 20th January 2022, with each party bearing their own costs.

Key legal issues

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01

Whether the threshold for citing contempt was met

Holding

It was not: the applicant failed to extract and attach the impugned orders and produced no affidavit of service proving service of the order's terms on the 1st Defendant.

Reasoning

Although knowledge of an order may be imputed where a party's advocate is present in court, the applicant's assertion of substituted service by newspaper advertisement was unsupported by any affidavit of service on record. Contempt being quasi-criminal, proof of the terms of the order, knowledge and breach must be strict. Without proof of service of the order's contents, contempt could not be established.

p. 6
02

Whether the 1st Defendant willfully disobeyed the orders

Holding

No. The court's own locus in quo visit showed the developed parcels were held and developed by third parties, not the 1st Defendant; the deponent's averments were unfactual.

Reasoning

The court conducted a site visit on 12 November 2021 and found completed structures owned by persons other than the 1st Defendant (e.g. a mosque on Plot 1542, Daylun Company Limited on Plots 1540/1541). The Lakhani affidavit's claim that the 1st Defendant constructed buildings and obtained title was held to be possibly a wilful misrepresentation. Citing the 1st Defendant alone would be discriminatory and premature pending full trial.

p. 6
03

Whether demolition of structures could be ordered under Order 40 Rule 3

Holding

No. Such a drastic order was premature at the interlocutory stage, not backed by equity, and risks violating the constitutional right to property.

Reasoning

The court noted the interim injunctions of 2012 had expired long before, since ex-parte injunctions lapse under Order 40 Rule 4(2). Demolition orders could only issue after evidence was adduced, tested and analyzed at full hearing. Ordering demolition before trial would contravene Article 40(1) and (2) of the Constitution. The prayer was declined and deferred.

p. 7

Legal principles established

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  • Three elements must be proved in contempt proceedings: terms of the order, knowledge of the terms by the respondent, and failure to comply.
  • Contempt is an offence of criminal character requiring a standard of proof higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
  • Following the nullification of the Contempt of Court Act, 2016, the court reverts to the pre-existing law: the Judicature Act and the Supreme Court Rules of England.
  • Ex-parte interim injunctions cannot subsist interminably; Order 40 Rule 4(2) limits them to fourteen days with one extension.

Court orders

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  1. 1.The Notice of Motion dated 19th September 2018 dismissed.
  2. 2.The part-heard suit to continue and be heard consecutively on 19th and 20th January 2022 without failure.
  3. 3.Each party to bear their own costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1B, 3A and 63 (Cap. 21)
  • Civil Procedure Rules, 2010Order 40 Rule 3
  • Civil Procedure Rules, 2010Order 40 Rule 4(2)
  • Civil Procedure Rules, 2010Order 18 Rule 11
  • Civil Procedure Rules, 2010Order 9
  • Environment and Land Court ActSection 27
  • Judicature ActSection 5 (Cap. 8)
  • Contempt of Court ActNo. 46 of 2016 (declared constitutionally invalid)
  • Constitution of KenyaArticles 10 and 118(b)
  • Constitution of KenyaArticle 40(1) & (2)

Cases cited (12)

  • Ramesh Popatlal Shah & 2 Others v National Industrial Credit Bank Limited
    (2005) eKLR
  • Africa Management Communication International Limited v Joseph Mathenge Mugo & Another
    (2015) eKLR
  • Republic v Kenya School of Law and 2 Others, Ex-Parte Juliet Wanjiru Njoroge & 5 Others
    2015 (eKLR)
  • Christopher Kurutyon Lonyala & 27 Others v Cabinet Secretary Ministry of Lands and Settlement & Others
    (2020) eKLR
  • Gatharia K. Mutitika v Baharini Farm Ltd
    Civil Appeal No. 24 of 1985
  • Econet Wireless Kenya Limited v The Minister for Information and Communication of Kenya & Another
    (2005) eKLR 828
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    (2015) eKLR
  • Nicholas Salat v I.E.B.C. and others
    2013 eKLR
  • Charity Mpano Ntiyine v China Communication Constructions Company Limited & National Environment and Management Authority
    (2017) eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiku Evans & 11 Others
    Civil No. 3 of 2013
  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    [2021] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    (2018) eKLR
Jurisdiction invoked
Sections 1, 1B, 3A and 63 of the Civil Procedure Act Cap. 21 and Order 40 Rule 3 of the Civil Procedure Rules, 2010; Environment and Land Court Act Section 27; Judicature Act Section 5

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, "Aniket Property and Investment v Hamadi Juma Mwakibiro & 7 others [2022] KEELC 2008 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2008/eng@2022-01-19

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