Oyatsi v Peony Management Co. Ltd & 3 others (Environment & Land Petition E033 of 2023) [2024] KEELC 3300 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of contempt application founded on the Contempt of Court Act
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.
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.
Whether unnamed directors, agents and estate occupants can be committed to civil jail
No; contempt proceedings cannot be against all and sundry, and unnamed persons cannot be condemned without a fair hearing.
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.
Whether the Petitioner's suit against the 3rd and 4th Respondents should be struck out or dismissed
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.
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.
Legal principles established
#- 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
#- 1.The Petitioner's Notice of Motion dated 30th November 2023 for contempt is struck out as fatally defective
- 2.The 4th Respondent's Chamber Summons dated 8th December 2023 seeking striking out is dismissed
- 3.The 3rd Respondent's Notice of Motion dated 13th January 2024 seeking dismissal of the suit against him is dismissed
- 4.All three applications fail with no orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.