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ELCDismissed· [2024] KEELC 1140 (KLR)

Cottage Limited v KCB Staff Pension Fund & 5 others (Environment and Land Appeal E050 of 2023) [2024] KEELC 1140 (KLR)

Environment and Land Court
29 February 2024
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to punish landlords for contempt because the tenant hadn't met a payment condition attached to the stay order protecting them.

What this practically means

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Executive summary

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This ruling by E.K. Wabwoto, J, delivered virtually at Nairobi on 29th February 2024, disposed of two applications by the Applicant (the Appellant in an underlying appeal from the Business Premises Rent Tribunal) supported by affidavits of Valerie Rugene. The first, dated 14th December 2023, sought that the 1st Respondent and its trustees, Matano Nyaa, Elizabeth Njeri and George Gitonga be cited for aggravated contempt of the stay of execution orders issued on 1st December 2023, with a fine of no less than Kshs 10,000,000 and custodial sentences. The second, dated 29th December 2023, sought variation of the stay order by removing the condition requiring payment of Kshs 3,000,000 within 30 days. The Respondents, through counsel Atieno, submitted the distress occurred between 6.45am and 8.00am and that no application for return of goods was before the court. Counsel Marete relied on Shimmers Plaza v National Bank of Kenya, urging protection of the weaker party. The court framed two issues: whether the Respondents should be cited for contempt, and whether the threshold for variance was met. Applying Sam Nyamweya and North Tetu Farmers, the court held the standard of proof in contempt is higher than the balance of probabilities and that the stay orders bound the Respondents only upon the Applicant's compliance with the payment condition; absent compliance, the Respondents could lawfully levy distress under the Tribunal's orders, and the distress at 6.30am fell between sunrise and sunset under Section 3 of the Distress for Rent Act. On variance, Order 45 rule 1(1) was not satisfied: the alleged Kshs 4,000,000 payment predated the hearing, was disputed, and verifiable payments totalled only Kshs 3,500,000. Both applications were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondents should be cited for contempt of the stay orders of 1st December 2023

Holding

No contempt was established. The stay orders were conditional upon the Applicant paying Kshs 3,000,000; since the Applicant had not complied, the orders were not binding on the Respondents, who were entitled to levy distress under the Tribunal's orders of 8th August 2023.

Reasoning

Contempt allegations are serious as they risk the contemnor's liberty and property, hence a heightened standard of proof. The elements from North Tetu Farmers must all be proved. Here the stay was conditional: it would bind the Respondents only upon the Applicant's compliance. The Applicant was undisputedly in arrears, had not paid the Kshs 3,000,000, and the distress occurred between sunrise and sunset, consistent with Section 3 of the Distress for Rent Act.

p. 3
02

Whether the Applicant met the threshold for variance/review of the orders of 1st December 2023

Holding

No. The Applicant presented no new evidence; its alleged payment of Kshs 4,000,000 was made on 27th November 2023, was known before the hearing, was disputed (the Respondent claimed only Kshs 2,800,000 was received), and the court's perusal of payment advices showed only Kshs 3,500,000 verifiable.

Reasoning

Order 45 rule 1(1) requires new and important matter discovered after the order, an error apparent on the face of the record, or other sufficient reason. The payment was made before the 1st December hearing and was not argued then; it was also disputed in the Respondent's letter of 28th November 2023, which declared settlement negotiations collapsed. Settlement negotiations having collapsed, no basis for variance existed.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities applicable in ordinary civil proceedings.
  • Civil contempt requires proof that the order was clear and unambiguous, binding, known to the contemnor, breached, and that the breach was deliberate.
  • Under Section 3 of the Distress for Rent Act, no distress may be levied between sunset and sunrise or on a Sunday; a distress beginning at 6.30am is lawful.
  • Review/variance requires new and important matter, error apparent on the face of the record or other sufficient reason under Order 45 rule 1(1).

Court orders

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  1. 1.The applications dated 14th December 2023 and 29th December 2023 are dismissed
  2. 2.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Distress for Rent ActSection 3
  • Civil Procedure RulesOrder 45 rule 1(1)

Cases cited (3)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Sam Nyamweya & Others v Kenya Premier League Ltd and Others
    [2015] eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    [2016] eKLR
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Appeal against orders of the Business Premises Rent Tribunal; review/variance jurisdiction under Order 45 rule 1(1) of the Civil Procedure Rules and contempt jurisdiction of the High Court-type court seized of the appeal

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, "Cottage Limited v KCB Staff Pension Fund & 5 others (Environment and Land Appeal E050 of 2023) [2024] KEELC 1140 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1140/eng@2024-02-29

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