Aniket Property and Investment v Hamadi Juma Mwakibiro & 7 others [2022] KEELC 2008 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the threshold for citing contempt was met
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.
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.
Whether the 1st Defendant willfully disobeyed the orders
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.
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.
Whether demolition of structures could be ordered under Order 40 Rule 3
No. Such a drastic order was premature at the interlocutory stage, not backed by equity, and risks violating the constitutional right to property.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 19th September 2018 dismissed.
- 2.The part-heard suit to continue and be heard consecutively on 19th and 20th January 2022 without failure.
- 3.Each party to bear their own costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.