Abdullahi Ahmed Gele t/a Buxton Filling Station v County Government of Mombasa & 5 others
The bottom line
#A Mombasa court found respondents knew of court orders but delayed any jail or fines, demanding they personally explain compliance first.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents had knowledge of the orders of 27th October 2021 and 1st December 2021
The court found the respondents, whose advocates were present when the orders were made, were fully aware of them
The court reasoned that the respondents' advocates were present on both occasions when the orders were made, so any claim of ignorance of the orders would be deceitful and mischievous. Knowledge being established, the remaining question was whether the respondents deliberately disobeyed the orders, which the court found required further factual interrogation including a site visit.
Whether the respondents should be committed for contempt
Committal was not decided; the court deferred, requiring the respondents to appear and explain compliance with the orders of 9th May 2022 before a site visit
The court held that the interim orders said to be breached were superseded by the ruling of 9th May 2022 on the application dated 5th October 2021, and that disputed factual questions (whether the site was vacant when orders issued, whether developments were on the petitioner's plot) required further interrogation, viva voce evidence and a site visit before any finding of disobedience.
Costs of the contempt application
Costs were left in the cause given the partial success and the matter progressing to full trial
Applying Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and Section 27(1) of the Civil Procedure Act, the court held that since the petitioner only partially succeeded and the matter was still progressing to full trial, it was fair and equitable that costs be in the cause.
Legal principles established
#- To succeed in civil contempt proceedings an applicant must prove the terms of the order, knowledge of those terms by the respondent, and failure by the respondent to comply
- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- Every person against whom a court order is made must obey it unless and until it is discharged, even if they believe it irregular or void
Court orders
#- 1.Notice of Motion application dated 4th February 2022 partially allowed with no orders as to costs
- 2.Summons issued to the 3rd, 4th, 5th and 6th Respondents to personally appear before the Court on 22nd May, 2023 to explain the status of their compliance with the orders issued on 9th May 2022
- 3.Petition to be heard by way of both viva voce evidence and affidavits on 2nd October, 2023, with a mention on 22nd May, 2023 for further directions
- 4.A site visit to be conducted pursuant to Order 18 Rule 11 of the Civil Procedure Rules, 2010, with security arranged through the County Commander of Police Coast Region and a virtual mention at 9.30am
- 5.Costs of the application dated 4th February, 2022 to be in the cause
- Jurisdiction invoked
- Section 29 of the Environment and Land Court Act, No. 19 of 2011 and Section 5 of the Judicature Act, Cap 8 (power to punish for contempt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdullahi Ahmed Gele t/a Buxton Filling Station v County Government of Mombasa & 5 others", Case Analysis (2023). Environment & Land Petition 44 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17331/eng@2023-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.