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ELCPartially AllowedEnvironment and Land Miscellaneous Application E080 of 2022· [2022] KEELC 14490 (KLR)

M'mboga & another v Kagumba

Environment and Land Court
27 October 2022
LMLucy N. Mbugua
1,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants, tenants running Synergy Autotech Garage on LR No.131457/10, sought contempt orders against their landlord, the Respondent, for disobeying orders issued by the Business Premises Rent Tribunal in Tribunal Case No. E010 of 2022 on January 7, January 13, January 26 and March 22, 2022. The orders restrained eviction and later directed that the Applicants be allowed to collect their goods from the premises. The Applicants alleged that after service of the orders they were assaulted, the Respondent leased the premises to a third party, and their attempts to collect goods worth Ksh.24,158,000/= were frustrated, incurring Ksh.585,800/= in logistical expenses. The Respondent, though represented and directed to file responses, filed none. The court, applying the Mutitika standard that contempt must be proved to a level higher than the balance of probabilities, found the Respondent was aware of the orders, having been served and represented, and that the police reports and email exchanges showed he frustrated the Applicants. The court held it could not award logistical expenses since the matter was a miscellaneous contempt application, not a substantive suit. The application was allowed in terms of prayers 2, 3 and 5, costs were awarded to the Applicants, and a notice to show cause was issued to the Respondent to explain why he should not be punished for contempt.

Key legal issues

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01

Whether contempt of Tribunal orders can be enforced by the Environment and Land Court

Holding

Yes; the miscellaneous application was filed because the tribunal has no mandate to conduct contempt proceedings, so the ELC may enforce the Tribunal's orders

Reasoning

The Applicants obtained orders from the Business Premises Rent Tribunal which the Respondent disobeyed. Since the tribunal lacks contempt jurisdiction, the Applicants filed this miscellaneous application in the ELC. The court accepted this route, considered service and awareness, and issued a notice to show cause rather than committing the Respondent immediately.

02

Whether the Respondent was aware of and disobeyed the orders

Holding

Yes; the Respondent was represented in the Tribunal proceedings, was served with all orders, filed a replying affidavit, and frustrated the Applicants' collection of goods

Reasoning

The court found the Respondent was represented by an advocate at the Tribunal, was served with all orders, and filed a replying affidavit. In this court he was given an opportunity to respond but did not comply with directions. The email exchanges and police reports showed the Applicants were frustrated when attempting to collect their goods on March 31, 2022.

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Legal principles established

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  • In contempt proceedings the standard of proof is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • In an application for contempt it must be proved that the alleged contemnor was aware of the orders and that he is in contempt

Court orders

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  1. 1.Application dated May 18, 2022 allowed in terms of prayers 2, 3 and 5
  2. 2.Costs of the application borne by the Respondent
  3. 3.Notice to show cause issued to the Respondent to explain why he should not be punished for contempt

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 63
  • Civil Procedure Rules 2010Order 40 Rule 3(1)
  • Environment and Land Court ActSections 13, 14, 29

Cases cited (2)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR

    Courts must punish those who flagrantly disobey their orders to protect the dignity and authority of the court

  • Mutitika v Baharini Farm Ltd
    [1985] eKLR

    Standard of proof in contempt is higher than balance of probabilities, almost but not exactly beyond reasonable doubt

Jurisdiction invoked
Sections 1A, 3A and 63 of the Civil Procedure Act; Order 40 Rule 3(1) of the Civil Procedure Rules 2010; Sections 13, 14 and 29 of the Environment and Land Court Act; inherent jurisdiction of the court

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, "M'mboga & another v Kagumba", Case Analysis (2022). Environment and Land Miscellaneous Application E080 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14490/eng@2022-10-27

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