The Market Plaza Ltd & another v Nairobi City County & 6 others; Johnson Sakaja Arthur – Governor Nairobi County & 2 others (Respondent)
The bottom line
#Nairobi's Governor and county officials were found guilty of disobeying 15-year-old court orders protecting Koinange Street land, and must comply or face sentencing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents were in contempt of the orders of 31st October 2007 and 25th August 2011
The court found all four elements of civil contempt satisfied and held the Respondents guilty of contempt.
The 2007 and 2011 orders were clear, unambiguous and unreversed. The Respondents had notice, having been reminded by the Plaintiffs' letters of 1st and 19th September 2022 after the alleged trespass on 31st August 2022, and never complied. Their breach was therefore willful and deliberate. The lapse and JR arguments were rejected as matters not raised to vary the orders beforehand.
Whether lack of personal service of the orders defeated the contempt application
Personal service was unnecessary; knowledge suffices, and service on the County bound its officers including the Governor.
Relying on Shimmers Plaza and Basil Criticos, the court held that knowledge supersedes personal service. An order against Nairobi City County binds all who act at its behest; service of the contempt application on the County is sufficient, and the Governor, as chief executive, is liable unless officers acted on a frolic of their own.
Whether the 2007 orders had lapsed by effluxion of time
The court did not accept the lapse argument as a bar; the orders had not been varied or set aside and remained binding.
The Respondents argued the 15-year-old orders had lapsed. The court treated the orders as subsisting since no appeal was preferred and no application to vary or set aside was made before the contempt application; a party who believes an order irregular must apply to court to discharge it, not disobey it.
Legal principles established
#- The elements of civil contempt are: a clear and unambiguous binding order; knowledge of the order; breach of the order; and deliberate conduct, proved to a standard higher than ordinary civil cases.
- Knowledge of a court order may be inferred from service on, or appearance by, a party's advocate; personal service is not always required.
- An order against a county binds all its employees, agents and persons acting at its behest; service of a contempt application on the County is sufficient, and the Governor as chief executive may be held liable for disobedience by county officers.
- A party aggrieved by a subsisting court order must seek its variation or setting aside from the court; it cannot simply disregard it.
Court orders
#- 1.A finding that the Respondents are in contempt of the orders issued on 31st October 2007 and 25th August 2011 and hence guilty
- 2.The Respondents are at liberty to purge the contempt within 14 days from the date of the ruling, pending mitigation and sentencing
- 3.The Respondents shall appear before the court at a date to be set after delivery of the ruling for mitigation and sentencing should they not have purged the contempt within 14 days
- Jurisdiction invoked
- Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act; contempt jurisdiction of the ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Market Plaza Ltd & another v Nairobi City County & 6 others; Johnson Sakaja Arthur – Governor Nairobi County & 2 others (Respondent)", Case Analysis (2023). Environment & Land Case 544 of 2017 & 97 of 2011 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17699/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.