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ELCPartially AllowedEnvironment & Land Case 39 of 2019· [2023] KEELC 20971 (KLR)

U-Haul Vehicle Limited v Kiambu Dandora Farmers Co. Limited & 5 others; Mwangi & 6 others (Interested Parties)

Environment and Land Court
19 October 2023
3,850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ordered police to help enforce a demolition order but refused contempt charges, warning that repeat contempt applications are barred.

What this practically means

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Executive summary

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The Plaintiff, U-Haul Vehicle Limited, moved the Court by Notice of Motion dated 17th January 2023 seeking enforcement assistance from the Inspector General of Police, a finding of contempt against the 1st Defendant's members and directors, and committal of the Inspector General and the OCS Dandora Police Station for failing to provide security to enable demolition of structures erected on L.R. Nos 209/9465-9468 in breach of orders of 17th June 2019 and 26th November 2020. The 1st Defendant raised a preliminary objection on res judicata and denied the constructions; the Attorney General opposed on res judicata and procedural grounds; the Interested Parties argued the 26th November 2020 orders had lapsed under Order 40 rule 6. Framing two issues - res judicata and whether the orders could issue - Omollo J held that the contempt prayer against the 1st Defendant's directors was identical to one determined by Okong'o J on 26th November 2020 and was barred by Section 7 of the Civil Procedure Act. However, the prayer compelling the Inspector General to provide security was new and not res judicata. Prayers 4 and 5, seeking committal of the 5th Defendant, were premature since the Plaintiff could not simultaneously seek enforcement and punishment, and had not exhibited prior demand correspondence. The application succeeded only in terms of prayer 2: the Inspector General was directed to provide adequate security and assistance within 30 days of written notice of the Plaintiff's readiness to execute the demolition orders. Prayers 3-5 were dismissed with costs to the Defendants.

Key legal issues

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01

Whether the application is res judicata

Holding

Prayer 3 (contempt against the 1st Defendant's members/directors) is res judicata, having been litigated and determined in the ruling of 26th November 2020; but the prayer for security against the 5th Defendant is not, as no prior application had been made against the 5th Defendant

Reasoning

The court compared the motion dated 16th December 2019, determined by Okong'o J on 26th November 2020, with the present application. The contempt prayer against the directors was identical, triggering Section 7 of the Civil Procedure Act. However, the prayer compelling the Inspector General to provide security was new, no prior application having been made against the 5th Defendant.

p. 7
02

Whether the orders sought can be granted

Holding

Only prayer 2 (direction to the Inspector General to provide security and assistance) is granted; prayers 3-5 are dismissed as res judicata or premature

Reasoning

The court held that punishing the 5th Defendant for contempt before granting/enforcing the security order was premature, and that contempt is a drastic power requiring strict procedure, including demonstrated prior correspondence to the 5th Defendant seeking security after the OCS's show-cause date, which the Plaintiff had not exhibited.

p. 8

Legal principles established

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  • A contempt prayer identical to one previously determined between the same parties is barred by res judicata under Section 7 of the Civil Procedure Act
  • A party cannot simultaneously seek enforcement of an order against a party and that party's punishment for contempt of the same order; the proper course is an application for variation of the order's terms
  • Punishment for contempt is a drastic power to be exercised with caution and strict adherence to procedure, including prior demand for compliance

Court orders

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  1. 1.Prayers 3-5 of the Notice of Motion dated 17th January 2023 dismissed with costs to the Defendants
  2. 2.The Inspector General of Police (5th Defendant) directed to forthwith provide adequate security and assistance to the Plaintiff within 30 days of receipt in writing of the Plaintiff's readiness to execute the orders of 26th November 2020 requiring demolition of the structures on L.R. Nos 209/9465, 9466, 9467 and 9468

Authorities

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Legislation

  • Constitution of KenyaArticle 245(2)(b)
  • Constitution of KenyaArticles 10, 232, 244
  • National Police Service ActSection 8A
  • Civil Procedure ActSection 7
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 40 rules 1 and 6
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 3(8)

Cases cited (17)

  • Katsuri Limited v. Kapurchand Depar Shah
    (2016) eKLR

    Contempt proceedings against a juristic person require piercing the corporate veil or citing directors

  • Akber Abdullah Kassam Esmail v. Equip Agencies Ltd & 4 Others
    Civil Appeal No 267 of 2004, (2014) eKLR

    Contempt proceedings against a juristic person require piercing the corporate veil or citing directors

  • Daniel Kibet Mutai & 9 others v Attorney General
    [2019] eKLR

    Grounds of opposition do not controvert facts raised in an affidavit

  • Faustina Njeru Njoka v Kimunye Tea Factory Limited
    [2022] eKLR

    Grounds of opposition do not controvert facts raised in an affidavit

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR

    Res judicata principles

  • Republic v Commissioner of Police an Another ex-parte Michael Monari & Another
    [2012] eKLR

    Police duty to enforce court orders

  • Shah v Attorney General (No. 3)
    Kampala HCMC No. 31 of 1969 [1970] EA 543

    Courts intervene to compel executive action only where the duty is clearly established and peremptory

  • Republic v Principal Secretary State Department of Interior & another ex parte Salim Awadh Salim & 12 others
    [2018] eKLR

    Caution in granting writs interfering with executive management

  • Kenya Commercial Bank Limited & 2 others v Commissioner of Police and Another
    Nairobi Petition No. 218 of 2012 (2013) eKLR

    Court may interrogate actions of independent institutions where there is contravention of the Constitution

  • Paul Ng'ang'a Nyaga v Attorney General & 3 Others
    (2013) eKLR

    Court may interfere with independent institutions on constitutional contravention

  • Samuel Oulula Wanguba v Director of Public Prosecution & another; Saicare Enterprices Limited (Interested Party)
    [2019] eKLR

    Court may interfere with independent institutions on constitutional contravention

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

    Elements to be proved to establish civil contempt

  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR

    Contempt of court principles

  • CIC General Insurance Company Limited v Philis Mbula
    (2019) eKLR

    A court cannot validate orders which upon expiry have ceased to exist

  • NSSF v John Ochieng Opiyo
    (2006) eKLR

    A court cannot validate orders which upon expiry have ceased to exist

  • Erick Kimingichi Wapang'ana T/A Magharibi Machinaries Limited v Equity Bank Limited & Another
    Bungoma Civil Appeal Number 91 of 2011

    Injunction orders extinguished by operation of law where not extended within twelve months

  • David Wambua Ngii v Abed Alembi & 6 Others
    (2014) eKLR

    Purpose and scope of Order 40 Rule 6 on lapse of injunctions

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit and its enforcement, including contempt and enforcement of its own orders

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, "U-Haul Vehicle Limited v Kiambu Dandora Farmers Co. Limited & 5 others; Mwangi & 6 others (Interested Parties)", Case Analysis (2023). Environment & Land Case 39 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20971/eng@2023-10-19

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