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ELCPartially AllowedEnvironment and Land Miscellaneous Application E273 of 2022· [2023] KEELC 18076 (KLR)

Recon Suppliers Limited v Koinange & 2 others; Royal Gardens Limited & 2 others (Interested Parties)

Environment and Land Court
30 May 2023
5,752 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Nairobi court fined two people Kshs.100,000 each for ignoring tribunal orders and selling attached goods, but let a lawyer off because he was never served.

What this practically means

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Executive summary

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The claimant, Recon Suppliers Limited, moved the Environment and Land Court under Section 5 of the Judicature Act seeking to cite Barbara Wambui Koinange, Harrison Kihara t/a Hariki Auctioneers, and Peter Gichuki t/a Gichuki King'ara & Co. Advocates for contempt of orders of the Business Premises Rent Tribunal issued on 2nd September 2022 and varied on 6th September 2022, and to have them committed to civil jail, ordered to purge the contempt by returning goods sold or paying Kesh 462,530.00. The 3rd defendant raised a preliminary objection contending the application was procedurally defective, that no leave for contempt proceedings had been sought, that RSC Order 52 requirements were unmet, that the impugned order was never served on him, and that he was not a party to the Tribunal proceedings. The court, applying Mukisa Biscuit and Oraro v Mbaja, rejected the preliminary objection because it required inquiry into disputed facts. On the merits, the court held that leave is not required for committal proceedings for breach of an order, following Christine Wangari Gacheche. Finding the order of 2nd September 2022 served and that the respondents themselves sought its variation, the court held the 1st and 2nd respondents wilfully disobeyed the orders by causing the sale of attached goods and cited them for contempt. The 3rd defendant escaped liability for want of service and elaboration. The court ordered the 1st and 2nd respondents to purge the contempt by paying Kesh 462,530.00, fined each Kshs.100,000.00 in default 6 months' imprisonment, allowed 30 days to pay the fine, and directed each party to bear its own costs.

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

The preliminary objection was rejected because it required ascertainment of facts and exercise of judicial discretion

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the court held a valid preliminary objection must raise a pure point of law on assumed facts. The objection here required inquiry into the pleadings of the Tribunal, evidence of service, and whether Tribunal orders were complied with - all disputed factual matters. Once a court steps outside pure law into facts, the objection cannot be sustained.

p. 5
02

Whether leave was required before filing contempt proceedings

Holding

No leave was required; the application was properly before the court

Reasoning

Relying on Christine Wangari Gacheche, the court adopted the position under the English CPR/White Book that where committal proceedings relate to breach of a judgment, order or undertaking, the correct procedure is an application notice under Rule 81.4 setting out the grounds numerically, and leave (permission) is not a prerequisite.

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Whether the 1st and 2nd respondents were in contempt of the Tribunal orders

Holding

The 1st and 2nd respondents were found in contempt for selling attached goods despite knowledge of the orders

Reasoning

The order of 2/09/2022 was served (affidavit of service HG3) and the respondents themselves applied to vary it, showing knowledge. The varied order of 6/09/2022 stayed release of the vehicle and goods but they caused the sale of attached goods. Knowledge superseding service, partial obedience coupled with sale amounted to wilful and deliberate disobedience.

p. 10
04

Whether the 3rd defendant was guilty of contempt

Holding

The 3rd defendant was not cited for contempt for want of service and elaboration of his alleged disobedience

Reasoning

Although knowledge supersedes personal service generally, no evidence was placed before the court to prove service on or knowledge by the 3rd defendant, who claimed to be away; further, the claimant never elaborated what act of disobedience he committed. Contempt requires an order directed at the person and proved knowledge.

p. 6

Legal principles established

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  • Leave (permission) is not required before bringing committal proceedings for breach of a judgment, order or undertaking
  • Contempt is quasi-criminal and proof must exceed balance of probabilities, though not the full criminal standard
  • Knowledge of a court order supersedes the requirement of personal service
  • For a party to be cited for contempt, they must have violated an order directed at them

Court orders

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  1. 1.Cited Barbara Wambui Koinange and Harison Kihara t/a Hariki for willful disobedience of the Business Rent Tribunal orders of 2nd September 2022 varied on 6th September 2022
  2. 2.Barbara Wambui Koinange and Harison Kihara t/a Hariki Auctioneers condemned to purge the contempt by paying the Claimant Kesh 462,530.00 in lieu of the sold goods
  3. 3.Each of the persons named fined Kshs.100,000.00, in default each to serve 6 months imprisonment
  4. 4.Fines to be paid within 30 days from the date of the order
  5. 5.In default of payment, each person named to be arrested immediately and committed to jail to serve the 6 months' jail ordered
  6. 6.Each party to bear its own costs
Jurisdiction invoked
Section 5 of the Judicature Act, Cap 8 (power to punish for contempt upholding authority and dignity of subordinate courts)

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, "Recon Suppliers Limited v Koinange & 2 others; Royal Gardens Limited & 2 others (Interested Parties)", Case Analysis (2023). Environment and Land Miscellaneous Application E273 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18076/eng@2023-05-30

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