Eastend Development Properties Limited v Cabinet Secretary for Interior and Co-ordination of National Government & 9 others [2022] KEELC 2034 (KLR)
The bottom line
#The Environment and Land Court dismissed a contempt claim because the injunction being relied on had expired twelve months after it was last extended.
What this practically means
#Executive summary
#Key legal issues
#Lapse of interlocutory injunction under Order 40 Rule 6
The order of 11th October 2016, last extended on 6th December 2016, lapsed on 6th December 2017 and could not be breached on 15th May 2020
The order was interlocutory and ex parte but Order 40 Rule 6 applies to it equally with inter partes injunctions. It was last extended on 6th December 2016 when the court also directed the applicant to fix the underlying application for hearing, which it never did. No sufficient reason for extension was shown. The 12-month period ran from the last extension, so the injunction expired on 6th December 2017.
Proof of contempt
Contempt was not proved: no affidavit of service or evidence of knowledge of the order, and only general allegations against individual contemnors
The applicant bore the burden of proving that the order and extending orders were extracted and served, or known to the respondents and alleged contemnors. It filed no affidavit of service; correspondence from its advocates could not substitute for proof of service. Further, the 6th to 10th respondents were never formally joined by amended plaint and were not bound by the order. General allegations without the specific role of each individual could not meet the near-criminal standard of proof.
Compensation as a remedy for contempt
The court would not have awarded Kshs. 246,944,711/- as compensation in contempt proceedings; such a claim for special damages must be pleaded and proved at trial
The applicant cited no authority supporting compensation as a remedy in contempt proceedings. The claim for the value of demolished structures is in the nature of special damages which must be specifically pleaded with particulars and strictly proved through a trial, not determined by affidavit evidence in a committal application.
Legal principles established
#- An interlocutory injunction lapses 12 months after grant (or after its last extension) unless the suit is determined or the court extends it for sufficient reason, and Order 40 Rule 6 applies equally to ex parte and inter partes injunctions
- A non-existent (lapsed) order cannot be disobeyed; contempt requires proof of service of, or knowledge of, a clear and precise order
- The standard of proof in contempt is higher than balance of probabilities, almost but not beyond reasonable doubt, and general allegations against individuals are insufficient
Court orders
#- 1.The application dated 3rd June, 2020 is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over contempt of its orders in a land suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eastend Development Properties Limited v Cabinet Secretary for Interior and Co-ordination of National Government & 9 others [2022] KEELC 2034 (KLR)", Case Analysis (2022). Notice of Motion dated 3rd June, 2020 (in ELC Suit; plaint initially against 1st to 5th defendants). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2034/eng@2022-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.