Republic v Principal Kadhi, Mombasa; Patel (Interested Party); Dar & 3 others (Respondent) (Judicial Review 90 of 2020) [2024] KEELC 705 (KLR)
The bottom line
#A Kenyan court refused to jail landlords for contempt because the applicant never personally served them with the court orders they allegedly breached.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents were in contempt of the orders issued on 6th March, 2023
No contempt was established; the application was dismissed
The court applied the four elements of civil contempt from Katsuri Limited v Kapurchand Depar Shah. It found the 6th March 2023 order clear and binding, but the Respondents were absent when the ruling was delivered and there was no proof of personal service or knowledge of the order. The alleged wilful breach, eviction and vandalism were mere unproved assertions. Further, the orders of 6th March 2023 were stay of execution, extension of time and security for costs - not orders of injunction - and injunctions had been dismissed in the 4th April 2022 judgment, so no injunction existed capable of being disobeyed. Facts had to be proved beyond reasonable doubt given the criminal nature of contempt and the deprivation of liberty at stake.
Who should bear the costs of the application
Costs awarded to the Respondents
Under Section 27(1) of the Civil Procedure Act costs follow the event unless the court for good reason orders otherwise. Having failed to prove contempt, the Applicant bore the costs of the application.
Legal principles established
#- Court orders must be obeyed whether or not erroneous; the remedy is to seek review, variation or setting aside, not to disobey
- Following the nullification of the Contempt of Court Act, 2016, contempt is governed by Section 5(1) of the Judicature Act, applying English law, including Rule 81.8 of the English Civil Procedure Rules on personal service
- Elements of civil contempt: clear and unambiguous order binding on the defendant; knowledge or proper notice; breach; deliberate conduct
- No order may be enforced by committal unless personally served or knowledge proved beyond reasonable doubt
- Contempt proceedings are criminal in nature and facts must be proved beyond reasonable doubt; the threshold is high as liberty is at stake
- Costs follow the event subject to the court's discretion under Section 27 of the Civil Procedure Act
Court orders
#- 1.That the Notice of Motion application dated 24th July, 2023 by the Applicant be and is hereby found to lack merited and hence dismissed in its entirety
- 2.That this Honourable Court hereby does not find the 1st, 2nd, 3rd & 4th Respondents being in contempt of Court Orders given on 6th March, 2023
- 3.That the Orders of Court issued on 6th March, 2023 and the Court order dated 30th March, 2023 should be served to the Respondents herein within seven (7) days of this ruling
- 4.That the Applicant shall pay the costs of the Notice of Motion application dated 24th July, 2023 to the Respondent
- Jurisdiction invoked
- Articles 48 and 159(2) of the Constitution of Kenya, 2010; Section 5(1) of the Judicature Act; Section 29 of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Principal Kadhi, Mombasa; Patel (Interested Party); Dar & 3 others (Respondent) (Judicial Review 90 of 2020) [2024] KEELC 705 (KLR)", Case Analysis (2024). Notice of Motion application dated 24th July, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/705/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.