Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 4 of 2021 (Formerly Thika ELC Case No. 115 of 2019)· [2022] KEELC 15578 (KLR)

Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party)

Environment and Land Court
15 November 2022
8,715 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner dodged having its case thrown out for ignoring court orders, but got a strict 30-day last chance to comply.

What this practically means

#

Executive summary

#
This ruling by Mboya J disposed of three simultaneous applications in a land dispute between Marriot Africa International Limited (Plaintiff) and four Defendants, with Ukombozi Holdings Ltd as Interested Party. First, the 3rd Defendant sought to strike out the Plaintiff's suit for contempt of the order of 10th March 2022, which had compelled the Plaintiff to comply with discovery notices dated 16th December 2020 and 2nd February 2021. The court found the Plaintiff willfully disobeyed the order - it had filed a Notice of Appeal but obtained no stay, and compliance with an order in force is mandatory per Hadkinson v Hadkinson. However, applying Kemco Auto and D.T Dobie, and invoking Articles 48 and 50(1) of the Constitution, the court declined to strike out the suit at first instance, holding striking out is a draconian last resort. Second, the Plaintiff's application to strike out the discovery notices and the 3rd Defendant's application was dismissed: the notices had been subsumed in the 10th March 2022 ruling, which is on appeal, so only the Court of Appeal could revisit them; the application also amounted to asking the court to sit on appeal over its own decision. Third, the Plaintiff's application to join John Kariuki Kanyotu and Jane Gathoni Muraya as interested parties failed: the suit property belonged to the 4th Defendant company, not the Kanyotu estate, and neither proposed party had an identifiable stake, applying Muruatetu, Pravin Bowry and Omondi v National Bank. All three applications were dismissed; the Plaintiff was granted a final 30 days to comply with the discovery order, failing which the suit stands automatically dismissed with costs. Costs of all three applications were awarded against the Plaintiff.

Key legal issues

#
01

Whether the Plaintiff was in contempt of the order of 10th March 2022

Holding

Yes - the Plaintiff willfully failed to comply with the discovery order despite having filed a Notice of Appeal and obtained no stay

Reasoning

The court had ordered the Plaintiff to honour the discovery notice within 30 days. The Plaintiff filed a Notice of Appeal but never sought a stay, so the order remained in force. Compliance with an order in force is mandatory even if the affected party believes it irregular, per Hadkinson v Hadkinson. The court found deliberate and willful failure to comply amounting to contempt.

02

Whether contempt warranted striking out the Plaintiff's suit

Holding

No - striking out is a draconian last resort; the court instead granted a final 30-day latitude to comply, with automatic dismissal in default

Reasoning

Relying on Hadkinson, Rose Detho and Kemco Auto, the court held it has a discretion whether to hear a party in contempt. Striking out would limit the Plaintiff's constitutional rights of access to justice (Article 48) and fair hearing (Article 50(1)). Following Kemco Auto, dismissal is reserved for extreme cases; the court declined to strike out at first instance but warned of automatic dismissal on continued default.

p. 11
03

Whether the court could revisit the Discovery notices and the resulting orders

Holding

No - the notices were subsumed in the ruling of 10th March 2022, which is on appeal; the Plaintiff's application was misconceived and an abuse of process

Reasoning

The 10th March 2022 ruling had already considered and upheld the Discovery notices, so none remained capable of being struck out. The ruling is the subject of a Notice of Appeal, leaving only the Court of Appeal seized of the issue. Further, a respondent should oppose an application under Order 51 Rule 14, not file a counter-application; the application sought to make the court sit on appeal over its own decision.

p. 13
04

Whether the proposed Interested Parties had an identifiable stake warranting joinder

Holding

No - neither proposed party had an identifiable stake; the suit property belonged to the 4th Defendant company, not the Kanyotu estate

Reasoning

Applying Muruatetu and Pravin Bowry, an interested party must show a clear, identifiable, proximate stake and prejudice from non-joinder. The property was registered in the 4th Defendant's name, not the deceased's estate, so the co-administratrix had no stake. The former director's presence was unnecessary since only the company can defend claims about its property, per Omondi v National Bank.

Legal principles established

#
  • A court order is binding and must be obeyed unless and until discharged; defiance is not an avenue for challenging it
  • Striking out a suit for contempt/disobedience of a discovery order is a draconian step to be invoked only as a last resort, in extreme cases
  • A respondent to an application must oppose it by preliminary objection, replying affidavit or grounds of opposition, not by filing a counter-application to strike it out
  • An interested party must demonstrate a clear, identifiable and proximate stake or interest in the proceedings; joinder is discretionary and not for cosmetic purposes
  • Only the company, not its directors or shareholders, can be sued or impleaded over claims touching on the company's affairs and property

Court orders

#
  1. 1.The Application dated the 26th day of April 2022 be and is hereby Dismissed
  2. 2.The Application dated the 19th day of May 2022 be and is hereby Dismissed
  3. 3.The Application dated the 23rd day of May 2022 be and is hereby Dismissed
  4. 4.The Plaintiff be and is hereby granted a further opportunity and latitude to comply with the terms and tenor of the Ruling rendered on the 10th March 2022
  5. 5.The Plaintiff be and is hereby directed to file a bundle of documents containing the named documents alluded to at the foot of the Discovery notices dated the 16th day of December 2020 and the 2nd February 2021, to be filed and served within thirty (30) days from the date hereof
  6. 6.In default of compliance with clauses (iv) and (v), the Plaintiff's suit will stand dismissed with costs for want of compliance with the directions on discoveries, without further reference
  7. 7.Costs of the three named applications shall be borne by the Plaintiff
  8. 8.Either Party is at liberty to apply

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSection 22(a)
  • Evidence Act, Chapter 80 Laws of KenyaSection 69
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure Rules, 2010Order 51 Rule 14(1) and (2)
  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 2

Cases cited (22)

  • Sheila Cassatt Issenberg & Another v Antony Machatha Kinyanjui
    (2021) eKLR

    Consequences of disobedience of court orders (cited by 3rd Defendant)

  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    (2005) eKLR

    Right of audience of a party in contempt (cited by 3rd Defendant)

  • Hadkinson v Hadkinson
    [1952] 2 All ER 567, 575

    Obligation to obey court orders until discharged; discretion to refuse hearing a disobedient party

  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    (2013) eKLR

    A court order is a directive that must be complied with; defiance is not an option

  • Rose Detho v Ratilal Automobiles Ltd & 6 Others
    [2007] eKLR

    Flexible, discretionary treatment of the Hadkinson jurisdiction

  • Mawani v Mawani
    [1977] KLR 159

    Adoption of Hadkinson principle (cited within Rose Detho quote)

  • Joseph Schilling & 2 Others v Stardust Investments Ltd & Another
    Nairobi Civil Appeal No. 134 of 1997 (unreported)

    Adoption of Hadkinson principle (cited within Rose Detho quote)

  • D.T Dobie & Co Ltd v Joseph Mbaria Muchina & Another
    (1980) eKLR

    No suit ought to be summarily dismissed unless hopeless and beyond redemption by amendment

  • Omar Sharif T/a Kemco Auto v Freight Forwarders Limited & Another
    [2008] eKLR

    Penalty of dismissing a suit for discovery default reserved for extreme cases and last resort; willful means intentional

  • Eastern Radio Service v Tiny Tots
    (1967) EALR 392

    Litigant not precluded for discovery default unless willful disregard of the order (quoted within Kemco Auto)

  • Oracle Productions Ltd v Decapture Ltd & 3 Others
    (2014) eKLR

    Compliance with court orders (cited by 4th Defendant)

  • Lustman & Co (1990) Ltd v Corperate Business Centre Ltd & 4 Others
    (2022) KEHC 42 (KLR)

    Compliance with court orders (cited by 4th Defendant)

  • Sharif T/a Kemco Auto v Freight Forwarders Ltd & Another
    (2008) eKLR

    Sanctions for disobedience of discovery orders (cited by 4th Defendant)

  • Republic v The Chairman District Alcoholic Drinks Regulation Committee & 4 Others, Ex-parte Detlef Heier & Another
    (2013) eKLR

    Abuse of due process (cited by 4th Defendant)

  • Rafiki Micro Finance Bank Ltd v Zenith Pharmaceticals Ltd
    (2016) eKLR

    Joinder of parties (cited by Plaintiff)

  • Concord Insurances Company Ltd v NIC Bank Ltd
    (2013) eKLR

    Joinder of parties (cited by Plaintiff)

  • Co-operative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999 (unreported)

    Joinder of parties (cited by Plaintiff)

  • Omondi v National Bank Ltd & Another
    (2001) eKLR

    Company property distinct from shareholders'; only the company can enforce its legal rights

  • Francis Karioko Muruatetu v Republic
    (2016) eKLR

    Definition and elements for joinder of an interested party

  • Judicial Service Commission v Speaker of The National Assembly & 8 Others
    [2014] eKLR

    Identifiable stake requirement for interested parties (cited within Muruatetu quote)

  • Pravin Bowry v John Ward & another
    [2015] eKLR

    Necessary party joinder principles; distinction between proper and necessary parties

  • Deported Asians Property Custodian Board v Jaffer Brothers Limited
    (1999) I EA 55 (SCU)

    Joinder where presence is necessary for effectual and complete settlement of questions in the suit

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning land; applications under the Civil Procedure Rules, 2010 (Order 11 and Order 51 Rule 14)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Marriot Africa International Limited v Murigu & 3 others; Ukombozi Holdings Ltd (Interested Party)", Case Analysis (2022). Environment & Land Case 4 of 2021 (Formerly Thika ELC Case No. 115 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15578/eng@2022-11-15

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