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ELCPartially AllowedELC Case No. 217 of 2021 & ELC No. E029 of 2022

Gateway Marine Services Limited & another v Yakub & 4 others (Environment & Land Case 217 of 2021 & 29 of 2022 (Consolidated)) [2024] KEELC 4274 (KLR)

Environment and Land Court
14 May 2024
34,779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~139 min to read original · ~4 min brief

The bottom line

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A Mombasa court froze all activity on two disputed Mombasa land parcels, but refused to jail anyone for contempt because the applicants couldn't prove the disobeying parties knew about the order.

What this practically means

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Executive summary

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This omnibus ruling by the Environment and Land Court at Mombasa (Naikuni J) determined four interlocutory applications across two related but unconsolidated files, ELC No. 217 of 2021 (Gateway Marine Services Limited v Mohamed Osman Yakub & 3 Others) and ELC No. E029 of 2022 (Belport Limited v Gateway Marine Services Limited), arising from a shareholder dispute within Belport and competing claims of trespass and obstruction of access to parcels at Kibarani, Makupa Causeway, Mombasa. The dispute centred on an access road allegedly hived off LR 1792/2. The court was assisted by a locus in quo site visit on 6th May 2022. Framing four issues, the court applied the Giella v Cassman Brown principles sequentially. It held that both plaintiffs, as registered proprietors, had prima facie cases, and although the irreparable-injury limb was not fully satisfied, the balance of convenience favoured preservatory orders; the applications dated 27th October 2021 and 15th March 2022 were allowed in their entirety, with injunctions preserving both parties' properties and restraining obstruction of access. The defendant's application of 24th March 2022 to set aside the orders of 16th March 2022 failed, service having been proved and the application overtaken by events. The contempt application of 4th April 2022 against Bob Weyn, other directors and John Sanga of Senaca EA Limited was dismissed: personal service or knowledge of the order and wilful disobedience were not proved beyond reasonable doubt. All costs were left in the cause, and the parties were encouraged to pursue out-of-court settlement.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs in both ELC Case No. 217 of 2021 and ELC No. 29 of 2022 have made out a case for the grant of temporary injunctive orders and whether the Notices of Motion dated 27th October 2021 and 15th March 2022 are merited
  2. 2.Whether the Court will set aside the orders issued on 16th March 2022 under Order 40 Rule 7 of the Civil Procedure Rules, 2010 and whether the Notice of Motion dated 24th March 2022 is merited
  3. 3.Whether the Defendant's directors in ELC No. 29 of 2022 and John Sanga of Senaca E.A Limited should be committed to prison for contempt of court as per the Notice of Motion dated 4th April 2022
  4. 4.Who will bear the costs of the four Notices of Motion

Key legal issues

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01

Whether the rival plaintiffs in the two suits established a prima facie case for temporary injunction

Holding

Each plaintiff, as registered proprietor of its respective suit parcels, established a right capable of protection and a prima facie case

Reasoning

The court, guided by Mrao Ltd v First American Bank and Mbuthia v Jimba Credit Corporation, held that at interlocutory stage it need not make final findings on contested facts but only weigh the relative strength of the parties' cases. Both parties produced certificates of title over their respective parcels, establishing rights that may be infringed if orders are not granted, and so each made out a prima facie case with a probability of success.

02

Whether irreparable injury and balance of convenience favoured the grant of injunctions

Holding

The court found the applicants had not fully demonstrated irreparable harm compensable only by injunction but found the balance of convenience favoured preservation of the suit property; preservatory orders were granted

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai and Amir Suleiman v Amboseli Resort, the court held that no undertaking for damages had been issued and the applicant had not demonstrated injury not capable of redemption by damages, so the second Giella limb was not satisfied. However, the balance of convenience lay with the registered proprietor and there was a lower risk in granting preservatory orders pending the full hearing.

p. 51
03

Whether the orders of 16th March 2022 should be set aside under Order 40 Rule 7

Holding

The application to set aside failed: service was proper and the application was overtaken by events

Reasoning

The court applied Order 40 Rule 7 and Order 12 Rule 7, holding that ex parte orders may be set aside only where service was improper or absence was for sufficient cause (Ongom v Owota). The defendant was served on 22nd March 2022 and the hearing date set; the application was also overtaken by the court's grant of interlocutory injunctions. Natural justice considerations did not avail the defendant.

p. 55
04

Whether the directors and Senaca EA's General Manager were guilty of contempt

Holding

No contempt established: knowledge of the order and wilful disobedience were not proved to the requisite criminal standard

Reasoning

Applying Katsuri Ltd v Kapurchand Depar Shah, Exparte Langely, and Shimmers Plaza Ltd v National Bank of Kenya, the court required proof beyond reasonable doubt of clear terms, personal service or knowledge, breach and deliberateness. The court found no proof that the order was delivered to the respondents and that the alleged wilful breach remained unproved assertions; contempt involving possible loss of liberty must be proved beyond reasonable doubt.

p. 58

Legal principles established

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  • The three Giella v Cassman Brown conditions for interlocutory injunction are sequential hurdles the applicant must surmount and cannot be leap-frogged
  • Civil contempt must be proved to a standard higher than in ordinary civil cases
  • No court order requiring a person to do or abstain from an act may be enforced by committal unless personally served or the person is shown to have knowledge of the order
  • Following the invalidation of the Contempt of Court Act 2016, Section 5(1) of the Judicature Act and English CPR Part 81 continue to govern contempt proceedings

Court orders

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  1. 1.The Notice of Motion by the Plaintiff in ELC No. 217 of 2021 found to have merit and allowed in its entirety
  2. 2.The Notice of Motion dated 15th March 2022 by the Plaintiff in ELC No. 29 of 2022 allowed in its entirety
  3. 3.The Notice of Motion dated 24th March 2022 by the Defendant in ELC No. 29 of 2022 found to lack merit and disallowed in its entirety
  4. 4.The Notice of Motion dated 4th April 2022 by the Plaintiff in ELC No. 29 of 2022 found to lack merit and disallowed in its entirety
  5. 5.Temporary injunction restraining the parties, their directors, agents, assigns, workers and representatives from demolishing, blocking, constructing, erecting, renovating or in any manner interfering with parcels LR No 2529 (Orig No.1792/2) Section V Mainland North CR No 65940 and LR No. 2385 (Orig No.1900/1) Section V Mainland North CR No. 41347 situate in Mombasa pending hearing and determination of the suit
  6. 6.The Defendants in ELC No. 217 of 2021 restrained from blocking the Plaintiff's access to its property or interfering with its business activities pending the hearing and determination of the suit
  7. 7.The Court found no contempt committed by Bob Edward Lisa Weyn, Yannick Robert Louis Aiglee Weyn, Fernando De Oliveira and John Sanga
  8. 8.The case to be heard on 17th October 2024, with mention on 16th July 2024 for Pre-Trial Conference under Order 11
  9. 9.Parties encouraged to continue exploring out-of-court negotiation under Article 159(2)(c) and Sections 20(1) and (2) of the Environment and Land Court Act
  10. 10.Costs of all four Notices of Motion to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159(2)(c) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, Cap 21; Order 40 of the Civil Procedure Rules, 2010; Sections 20(1) and (2) of the Environment and Land Court Act, No. 19 of 2011
Consolidated with
The files were handled together for convenience but were never formally consolidated

Relief refused

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Committal of Bob Edward Lisa Weyn, Yannick Robert Louis Aiglee Weyn, Fernando De Oliveira and John Sanga to civil jail for contempt of court

The applicant failed to prove service/knowledge of the order and wilful disobedience to the required standard

p. 58

Setting aside of the orders of 16th March 2022 sought by the Defendant in ELC No. 29 of 2022

Service was effected and the application was overtaken by events as the interlocutory injunction had already been granted

p. 55

Costs

Costs of the Notices of Motion applications dated 27th October 2021, 15th March 2022, 24th March 2022 and 4th April 2022 to be in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion application by the Plaintiff in ELC No. 217 of 2021 be and is hereby found to have merit and is allowed in its entirety.
p. 60disposition - first application allowed
That the Notice of Motion application dated 15th March, 2022 by the Plaintiff in ELC No. 29 of 2022 be and is hereby allowed in its entirety.
p. 60disposition - injunction application allowed
That the Notice of Motion application dated 24th March, 2022 by the Defendant in ELC No. 29 of 2022 be and is hereby found to lack merit and is disallowed in its entirety
p. 60disposition - setting aside application dismissed
That the Notice of Motion application dated 4th April, 2022 by the Plaintiff in ELC No. 29 of 2022 be and is hereby found to lack merit and is hereby disallowed in its entirety.
p. 60disposition - contempt application dismissed
That the costs of the Notices of Motion applications dated 27th October, 2021, 15th March, 2022, 24th March, 2022 and 4th April, 2022 to be in the cause.
p. 61costs order
That pending the hearing and determination of this suit, this Honourable Court be pleased to grant a temporary injunction restraining, barring, stopping and or preventing the parties, its Directors, agents, assigns, workers, representatives and demolishing, blocking, and constructing, erecting, renovating ad or in any manner interfering with any and or both of Plaintifis parcel of land
p. 60operative injunctive order preserving the suit property
It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.
p. 48sequential application of Giella principles

Issues in the judgment

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material

The disposition records the contempt finding against orders 'given on 6th March, 2023' and an order 'dated 30th March, 2023', conflicting with the ruling throughout which concerns orders of 16th March 2022

minor

The court states in its disposition that the Plaintiff's application in ELC No. 217 of 2021 was 'allowed in its entirety', but in the analysis it found the second Giella limb (irreparable injury) unsatisfied and granted only preservatory orders

minor

Discrepancy in the date of the 15th March 2022 application referred to in the disposition as '15th March, 2024'

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, "Gateway Marine Services Limited & another v Yakub & 4 others (Environment & Land Case 217 of 2021 & 29 of 2022 (Consolidated)) [2024] KEELC 4274 (KLR)", Case Analysis (2024). ELC Case No. 217 of 2021 & ELC No. E029 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4274/eng@2024-05-14

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