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ELCPartially AllowedNot stated in the excerpt (Environment and Land Court, Nairobi)· [2024] KEELC 1284 (KLR)

Hasmo Agencies Limited v National Social Security Fund (Environment & Land Case E052 of 2023) [2024] KEELC 1284 (KLR)

Environment and Land Court
7 March 2024
3,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi court found four NSSF officials in contempt for blocking property access despite court orders, and they now face sentencing.

What this practically means

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Executive summary

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The Plaintiff, Hasmo Agencies Limited, moved the Environment and Land Court by Notice of Motion dated 9th November 2023 seeking leave to commence contempt proceedings against four officers of the Defendant, the National Social Security Fund: Managing Trustee David Koros, Head of Legal Hellen C. Koech, Property Manager Obed Mbuvi and Head of Security Isaac Tuei Koskei, for failure to comply with interim injunction orders issued on 14th and 15th August 2023 restraining the Defendant from blockading the entrances of suit premises on Kenyatta Avenue, Nairobi, using specified motor vehicles. The Defendant, through a Replying Affidavit sworn by its Legal Manager, contended that the Plaintiff was a vexatious litigant pursuing parallel proceedings, was not in possession of the premises, and that the orders were impractical to comply with. The court framed the sole issue as whether the Defendant's officers were in contempt, holding that disputes over possession and the correctness of the orders belonged in an application to vary or set them aside. Applying Section 29 of the Environment and Land Court Act and Section 5(1) of the Judicature Act, and the standard of proof in contempt being higher than the balance of probabilities but below beyond reasonable doubt, the court found the orders clear and unambiguous, service proved and unchallenged, and the breach deliberate, evidenced by photographs. It held that a party cannot abrogate the mandate of interpreting court orders. The court found the four officers in contempt, directed them to appear in person for mitigation and sentencing, and ordered the Defendant to pay the costs of the application.

Key legal issues

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01

Jurisdiction of the Environment and Land Court to punish for contempt

Holding

The court has express jurisdiction under Section 29 of the Environment and Land Court Act, concurring with Section 5(1) of the Judicature Act

Reasoning

The court held that Section 29 of the Environment and Land Court Act expressly clothes the ELC with jurisdiction to punish for contempt, in concurrence with Section 5(1) of the Judicature Act, which vests superior courts with powers analogous to the High Court of Justice in England. Section 29 prescribes the offence and penalties for disobeying orders of the court.

p. 4
02

Whether the Defendant's officers were in contempt

Holding

The named officers were in contempt; the orders were clear and unambiguous, they had notice, and they deliberately breached them

Reasoning

The court found the orders clear and unambiguous; an Affidavit of Service dated 18th August 2023 established notice and was not challenged; photographs showed vehicles blocking the entrance; and the Defendant did not deny blocking it, only contending the orders were incapable of compliance because the plaintiff was not in possession. The court held a party cannot abrogate the mandate of interpreting orders; any challenge should be by application to vary or set aside.

p. 6
03

Whether disputes over possession and applicability of the orders could be raised in contempt proceedings

Holding

No; such arguments must be raised in an application to vary or set aside the orders

Reasoning

The court noted that while parties robustly argued about the applicability of the orders and who was in possession, those arguments were not for determination at that stage. The only issue was whether the officers were in contempt. A party who believes orders were wrongly issued must move the court to vary, discharge or set them aside, not simply disobey them.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Until a court order is set aside, discharged or varied, it must be obeyed; a party cannot abrogate the mandate of interpreting the court's orders
  • Three elements of civil contempt must be established: a clear and unequivocal order, actual knowledge of it, and intentional breach

Court orders

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  1. 1.The Defendant's Managing Trustee David Koros, Head of Legal Hellen C. Koech, Property Manager Obed Mbuvi and Head of Security Isaac Tuei Koskei are found to be in contempt of the orders of the court of 14th and 15th August 2023
  2. 2.The named contemnors to appear before the court in person for mitigation and sentencing
  3. 3.The Defendant to pay the costs of the application
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 5(1) of the Judicature Act

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, "Hasmo Agencies Limited v National Social Security Fund (Environment & Land Case E052 of 2023) [2024] KEELC 1284 (KLR)", Case Analysis (2024). Not stated in the excerpt (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1284/eng@2024-03-07

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