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ELCDismissedEnvironment & Land Case 46 of 2020· [2023] KEELC 18022 (KLR)

Hassan (Suing as the special attorney of Enrico Quercioli) v Defabianis & 2 others

Environment and Land Court
9 June 2023
MOMAO ODENY
2,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail a property owner for contempt because the alleged conduct fell outside the exact wording of the court order.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 9th March 2022 by the Plaintiff, suing as special attorney of Enrico Quercioli, seeking leave to cite the 1st Defendant (the Attorney General was 1st Defendant, though the contempt was directed at the 2nd Defendant, Maria Angela Defabianis, described in the motion as 1st Defendant/Respondent) for contempt of an injunction issued on 30th April 2021, her committal to six months' imprisonment, warrants of arrest, and extension of the order. The Plaintiff alleged the Respondent changed the padlock on the common door, denied him access to the roof top and the leaking water tank, and continued barricading the access door despite service of the order. The Respondent denied breach, contending the orders were not tenable, that she changed the lock for security and privacy reasons, and that the Applicant had not built an external access ladder as directed. The court applied the four elements of civil contempt from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi: clear and unambiguous terms, knowledge or notice, breach, and deliberate conduct. It found the order was clear and served, but that the acts complained of - changing the lock and denying roof top access - were not among the acts restrained by the order. Contempt was therefore not proved. The application was dismissed with each party bearing their own costs, and the 1st Defendant was warned to act within the confines of the order and the law.

Key legal issues

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01

Whether the 1st Defendant was in contempt of the injunction order of 30th April 2021

Holding

No contempt was established; the change of lock and denial of rooftop access did not fall within the acts restrained by the order

Reasoning

The court set out the four elements of civil contempt and the applicable standard of proof. It found the order of 30th April 2021 was clear and unambiguous and was served, but the acts complained of - changing the lock and barring access to the roof top - were not among the acts the 1st Defendant was restrained from doing. The Applicant was advised to seek access orders separately.

02

Whether the injunctive orders were tenable

Holding

The Respondent had no authority to allege the order was not tenable; a court order must be obeyed even if disagreed with

Reasoning

The 1st Defendant contended the injunctive orders were not tenable as there was no cause of action. The court rejected this as a ground to resist compliance, warning the 1st Defendant to act within the confines of the order and the law, and directing that any grievance about tenability be raised after obedience.

p. 5

Legal principles established

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  • Four elements must be proved for civil contempt: clear and unambiguous terms of the order binding on the defendant, knowledge or proper notice of the terms, breach of the terms, and deliberate conduct
  • A party cannot resist compliance with a court order by alleging it is not tenable; the order must be obeyed first
  • Contempt cannot be founded on conduct falling outside the clear terms of the order alleged to have been disobeyed

Court orders

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  1. 1.The Notice of Motion dated 9th March 2022 seeking leave to cite the 1st Defendant for contempt is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Contempt of Court ActSection 5
  • Environment and Land Court ActSection 29
  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    (2020) eKLR

    Elements to prove in civil contempt: terms of the order, knowledge, and failure to comply

  • Jihan Freighters Ltd v Hardware & General Stores Ltd

    Order alleged to be disobeyed must be clear and precise

  • A.B. & Another v R. B.
    (2016) eKLR

    Order must be clear and precise to sustain committal for contempt

  • Martin Macharia v Peterson Njoroge & 2 Others; Joseph Maritim & 2 Others (Interested Parties)
    (2011) eKLR

    Knowledge of the terms of the order by respondents

  • Basil Criticos v Attorney General and 8 Others
    (2012) eKLR

    Knowledge supersedes personal service; strict personal service requirement unnecessary where knowledge is shown

  • Shimmers Plaza Limited v National Bank of Kenya
    (2015) eKLR
  • North Tetu Farmers Co. Ltd v. Joseph Nderitu Wanjohi
    (2016) eKLR

    Four elements of civil contempt and the required standard of proof

Jurisdiction invoked
Section 5 of the Contempt of Court Act, 2016 and Section 29 of the Environment and Land Court Act

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, "Hassan (Suing as the special attorney of Enrico Quercioli) v Defabianis & 2 others", Case Analysis (2023). Environment & Land Case 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18022/eng@2023-06-09

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