Ambui A Mbari ya Ngoru & 3 others v Unganga & 34 others
The bottom line
#A 13-year-old interim injunction had expired automatically, so the court could not punish anyone for disobeying it.
What this practically means
#Executive summary
#Key legal issues
#Whether contempt orders could be granted under the provisions cited in the application
No - the cited provisions (section 3A CPA, Order 3 rules 5(1) and 3(6), Article 40(1)) do not confer jurisdiction to punish contempt; contempt is governed by section 5 of the Judicature Act
Section 3A reserves inherent powers and is not a substantive provision; it may only be invoked where no clear provision anchors the relief. Contempt of court in Kenya is dealt with under section 5 of the Judicature Act after the Contempt of Court Act 2016 was nullified. The application was therefore misconceived as brought.
Whether the applicant proved the elements of civil contempt
No - the applicant failed to set out grounds fully, identify each alleged act numerically, prove knowledge of the order by the 4th-35th defendants, or prove deliberate breach
Under Part 81 UK CPR and the four elements of civil contempt, the applicant must prove the terms of the order, knowledge, breach and deliberateness to a standard higher than ordinary civil cases. The supporting affidavit did not identify each alleged act separately and numerically, no proof of service or knowledge was adduced, and photographs did not show when construction occurred.
Whether the June 15, 2009 interim injunction was still in force
No - it lapsed automatically after one year under Order 40 rule 6 of the Civil Procedure Rules, 2010
Order 40 rule 6 provides that an interlocutory injunction lapses if the suit is not determined within 12 months unless the court orders otherwise for sufficient reason. The 2009 order was over 13 years old and no extension was shown, so there was no valid order capable of being enforced by contempt proceedings.
Whether contempt can be found against non-parties
Non-parties are generally not bound by decisions, but knowledge of an order supersedes personal service; here knowledge was not proved
The general rule is that a non-party is not bound by proceedings' outcome, but court orders must be obeyed and service is not a prerequisite to obedience where knowledge is proven. The 4th-35th defendants were joined only on June 30, 2022 and were not parties when the 2009 order issued, so the applicant had to prove the contempt elements against them, which he failed to do.
Legal principles established
#- An interlocutory injunction lapses automatically 12 months after grant unless extended for sufficient reason before it lapses
- There can be no liability for contempt of an order that no longer exists
- Inherent jurisdiction under section 3A cannot be invoked where the rules provide the procedure
- Knowledge of a court order supersedes the requirement of personal service
- An unopposed application must still be proved to the required standard
Court orders
#- 1.Leave granted by consent to join the intended 4th to 35th defendants to the suit
- 2.The 3rd plaintiff's application dated February 15, 2022 dismissed with no orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit; application brought under section 3A of the Civil Procedure Act, Order 3 rule 5(1) & 3(6) of the Civil Procedure Rules and Article 40(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambui A Mbari ya Ngoru & 3 others v Unganga & 34 others", Case Analysis (2022). Environment and Land Case Civil Suit 393 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13396/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.