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ELCDismissed· [2024] KEELC 3300 (KLR)

Oyatsi v Peony Management Co. Ltd & 3 others (Environment & Land Petition E033 of 2023) [2024] KEELC 3300 (KLR)

Environment and Land Court
11 April 2024
1,540 words in judgment
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The bottom line

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A Kenyan court struck out a contempt application built on the invalidated Contempt of Court Act, confirming contempt must target named individuals and follow the Judicature Act.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi, delivered by M. D. Mwangi, J on 11th April 2024, disposed of three applications heard contemporaneously in an ongoing petition concerning land parcel LR 330/561, Nairobi. First, the Petitioner's Notice of Motion dated 30th November 2023 sought contempt findings and punishment against the Respondents for breaching interlocutory injunctions issued on 23rd November 2023, including committal to civil jail of directors, agents and all occupants of the 1st Respondent's apartments, demolition of structures and reinstatement of a demolished gate. The court held the application fatally defective because it was grounded on the Contempt of Court Act No. 46 of 2016, declared unconstitutional in Kenya Human Rights Commission v Attorney General; post-invalidation, contempt is governed by section 5 of the Judicature Act (English law). The court further held that contempt cannot lie against unnamed, unidentifiable persons without a fair hearing. The application was struck out with costs to the Respondents. Second, the 4th Respondent's application to strike out his name and that of former directors of the 1st Respondent, and third, the 3rd Respondent's application to dismiss the suit against him for want of a cause of action, were both dismissed: striking out is a draconian remedy reserved for plain and obvious cases, and the Applicants failed to show the Petitioner's case was hopeless or incurable by amendment. All three applications failed, with no orders as to costs in respect of them.

Key legal issues

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01

Validity of contempt application founded on the Contempt of Court Act

Holding

The application is fatally defective because it is premised on the Contempt of Court Act No. 46 of 2016, declared unconstitutional in KHRC v Attorney General, and citing a non-existent law is not a mere procedural technicality.

Reasoning

Mwita J declared the entire Contempt of Court Act invalid for lack of public participation under Articles 10 and 118 of the Constitution and for encroaching on judicial independence. Grounding an application on a non-existent law goes to the core of the application, so it cannot stand. Post-invalidation, contempt of court proceedings in Kenya are governed by section 5 of the Judicature Act, which applies English law.

p. 3
02

Whether unnamed directors, agents and estate occupants can be committed to civil jail

Holding

No; contempt proceedings cannot be against all and sundry, and unnamed persons cannot be condemned without a fair hearing.

Reasoning

The 4th prayer sought committal of directors, agents, servants and all occupants of apartments in Peony Estate. An estate comprises many people including children; the alleged contemnors were not specifically named. Committing unnamed persons would deny them the right to a fair hearing, so the relief was unsustainable.

p. 3
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Whether the Petitioner's suit against the 3rd and 4th Respondents should be struck out or dismissed

Holding

No; striking out is draconian and reserved for plain and obvious cases, and the Applicants did not show the suit is hopeless or incurable by amendment.

Reasoning

Relying on Cooperative Merchant Bank v Wekesa, Yaya Towers v Trade Bank and DT Dobie v Muchina, the court held that the striking-out jurisdiction must be exercised sparingly and only in exceptional cases. A party is entitled to pursue a claim however implausible unless it is demonstrably bound to fail or an abuse of process. The Applicants did not discharge that burden.

p. 4

Legal principles established

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  • An application premised on a non-existent (invalidated) law is fatally defective and cannot stand; the Contempt of Court Act No. 46 of 2016 was declared invalid, and contempt proceedings are now governed by section 5 of the Judicature Act (English law).
  • Contempt proceedings must target specific identifiable persons afforded a fair hearing, not all and sundry.
  • The jurisdiction to strike out pleadings is draconian, to be exercised sparingly and only in exceptional or plain and obvious cases.

Court orders

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  1. 1.The Petitioner's Notice of Motion dated 30th November 2023 for contempt is struck out as fatally defective
  2. 2.The 4th Respondent's Chamber Summons dated 8th December 2023 seeking striking out is dismissed
  3. 3.The 3rd Respondent's Notice of Motion dated 13th January 2024 seeking dismissal of the suit against him is dismissed
  4. 4.All three applications fail with no orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 3(1), 10, 118(6) (cited as 11(6)), 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(3)(a), 3(6)(b), 3(8)
  • Contempt of Court ActSections 5 and 29 (Act No. 46 of 2016)
  • Judicature ActSection 5
  • Land Registration ActSection 43(2)

Cases cited (4)

  • Kenya Human Rights Commission –vs- Attorney General & Another
    [2018] eKLR
  • Cooperative Merchant Bank Ltd v George Fredrick Wekesa
    C.A No. 54 of 1999
  • Yaya Towers Ltd v Trade Bank Ltd
    Civil Appeal No. 35 of 2020
  • DT. Dobie & Co. v Joseph Mbaria Muchina & Ano.
    [1980] eKLR
Jurisdiction invoked
Articles 2(1), 3(1) and 159 of the Constitution; Rule 3(3)(a), 3(6)(b) and 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Oyatsi v Peony Management Co. Ltd & 3 others (Environment & Land Petition E033 of 2023) [2024] KEELC 3300 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3300/eng@2024-04-11

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