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ELCPartially AllowedEnvironment and Land Appeal E002 of 2023· [2023] KEELC 22027 (KLR)

Rachael Cherono Sunyai & another v Sophia Wanjiku Nguru

Environment and Land Court
5 December 2023
LNL.L. Naikuni
5,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court found a landlord in contempt for demolishing rental property despite a court order, and froze any sale or demolition pending appeal.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (Naikuni J) on a Notice of Motion dated 18th July 2023 filed by the Respondent, Sophia Wanjiku Nguru, in an appeal against the 1st and 2nd Appellants. She sought contempt findings against the 1st Appellant for demolishing structures on the suit plot after a 20th February 2023 status quo order, a temporary injunction pending appeal, refund of rent and deposit collected over the demolished portion, and costs. The court framed three issues: contempt, temporary injunction, and costs. On contempt, it applied Order 40 Rule 3(1) CPR, Section 5 of the Judicature Act, Section 29 of the Environment and Land Court Act, and authorities including Woburn Estate, Gatharia K. Mutikika and Oilfield Movers, holding that the elements (order, service/knowledge, clarity, disobedience) were met since the 1st Appellant was aware of the order and willfully demolished the rental property. She was found in contempt and summoned to appear on 18th January 2024 for notice to show cause and sentencing (fine or up to six months' imprisonment or both), with a warrant of arrest if she fails to appear. On the injunction, applying Giella v Cassman Brown and Patricia Njeri, the court found a prima facie case, irreparable harm (demolition would render the appeal nugatory) and balance of convenience favouring the Respondent, and granted a temporary injunction restraining the Appellants from dealing with the property pending appeal. The 1st Appellant was also ordered to pay rent and deposit collected over the demolished portion as assessed by counsel under court supervision. Costs were placed in the cause. The application was allowed in its entirety.

Key legal issues

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01

Contempt of the 20th February 2023 status quo order

Holding

The 1st Appellant was in contempt for demolishing structures on the suit property despite knowledge of the order

Reasoning

The court found the order was made with counsel present and parties actively participating, so knowledge was established. Demolition on 7th July 2023 constituted willful and deliberate disobedience. The proper course was to apply under Order 40 Rule 7 to vary or discharge the order, not to defy it. The contemnor was to appear for notice to show cause and sentencing.

p. 8
02

Temporary injunction pending appeal

Holding

Granted - prima facie case, irreparable injury and balance of convenience all favour the Respondent

Reasoning

Applying Giella v Cassman Brown and Patricia Njeri principles, the court held the Respondent established an arguable issue to be determined on merit; demolition would alter the subject matter and render the appeal nugatory; and balance of convenience tilts to the Respondent given the 1st Appellant's conduct.

p. 9
03

Costs

Holding

Costs in the cause

Reasoning

Costs follow events under Section 27(1) of the Civil Procedure Act, but the court exercised its discretion to direct costs in the cause given the pending appeal.

p. 10

Legal principles established

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  • Elements required to establish contempt of a court order
  • Standard of proof in contempt is higher than balance of probabilities, short of beyond reasonable doubt
  • Personal knowledge of the order is required before a contempt finding
  • Principles for temporary injunction pending appeal

Court orders

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  1. 1.Notice of Motion dated 18th July, 2023 allowed in its entirety
  2. 2.1st Appellant found in contempt of court orders issued on 20th February, 2023; summons to personally appear before the Court on 18th January, 2024 for notice to show cause and sentencing by fine or jail term not exceeding six months or both
  3. 3.Temporary injunction restraining the Appellants from selling, disposing, demolishing, evicting and/or interfering with houses on the suit plot pending hearing and determination of the appeal
  4. 4.1st Appellant to immediately pay the Respondent rent and deposit collected over the demolished portion, as assessed by counsel and subject to court supervision
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 63(c), 27(1)
  • Civil Procedure Rules, 2010Order 40 Rules 3(1) and (3), Order 40 Rule 7
  • Constitution of Kenya, 2010Article 159(1) and (2); Article 163(9)
  • Judicature Act, Cap 8Section 5(1) and (2)
  • Environment and Land Court Act, No. 19 of 2011Section 29; Section 3
  • Supreme Court Act (CAP 9A)null
  • English Civil Procedure Rules (Amendment No. 3) Rules, 2020Rule 81.4

Cases cited (10)

  • Woburn Estate Limited versus Margaret Bashforth
    [2016] eKLR

    Evolution of contempt jurisdiction; each court now expressly clothed with power to punish for contempt

  • Christine Wangari Gachege versus Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR

    Procedure for contempt under Section 5 of the Judicature Act and English CPR

  • Econet Wireless Kenya Limited versus Minister for Information And Communication Of Kenya Authority
    [2005] eKLR

    Obligation of every person to obey court orders unless and until discharged

  • T.N Gadavarman Thiru Mulpad versus Ashok Khot and anor
    [2005] 5 SCC

    Disobedience of court orders strikes at the root of the rule of law

  • Gatharia K. Mutikika versus Baharini Farm Limited
    [1985] KLR 227

    Contempt is quasi-criminal; standard of proof consistent with gravity of the charge

  • Oilfield Movers Limited versus Zahara Oil & Gas Limited
    [2020] eKLR

    Court must be satisfied beyond any shadow of doubt the contemnor acted with full knowledge of the order

  • Mahinderjit Singh Bitta versus Union of India & Others
    1A No. 100 of 2010

    Contempt jurisdiction concerns intentional and willful violation of court orders

  • Patricia Njeri & 3 Others versus National Museum of Kenya
    [2004] eKLR

    Principles governing grant of temporary injunction pending appeal

  • Giella versus Cassman Brown
    [1973] EA 358

    Conditions for grant of interlocutory injunction

  • Mrao Limited versus First American Bank of Kenya & 2 Others
    [2003] eKLR

    Definition of a prima facie case

On appeal from
Chief Magistrate's Court
Chief Magistrate Civil Suit No. 1847 of 2021
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(c) Civil Procedure Act; Order 40 Rules 3(1) and (3) Civil Procedure Rules, 2010; Article 159(1) and (2) Constitution of Kenya, 2010

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, "Rachael Cherono Sunyai & another v Sophia Wanjiku Nguru", Case Analysis (2023). Environment and Land Appeal E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22027/eng@2023-12-05

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