Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another (Environment & Land Case 73 of 2021) [2024] KEELC 4969 (KLR)
The bottom line
#A Kenyan court dismissed a contempt claim against pension scheme trustees because the applicant couldn't prove the alleged disobedience of a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether the trustees of the 1st Defendant were in contempt of the status quo order made on 8th March 2022
No contempt was established; the application was dismissed in its entirety
The court applied the four ingredients from Katsuri Limited v Kapurchand Depar Shah: clear unambiguous order, knowledge of it, breach, and deliberate conduct. While the order was found clear and service undisputed, the court held the status quo orders were overtaken by events when the application of 21st February 2022 was heard and a judgment granting a temporary injunction issued. The Applicant's allegations of breach were found to be mere unproved assertions with no evidence adduced, and contempt being quasi-criminal required proof to the highest standard before summons to show cause could issue.
Who bears the costs of the application
No orders as to costs
Costs follow the event under Section 27(1) of the Civil Procedure Act, but the award remains at the court's discretion informed by the circumstances of each case as explained in Morgan Air Cargo Limited v Evrest Enterprises Limited. The court declined to award any costs, so effectively each party bears its own.
Legal principles established
#- Court orders are sacrosanct and must be obeyed until discharged on review, variation or setting aside; disobedience borders on criminality
- Contempt must be proved to a high standard and each element (clear unambiguous order, knowledge/notice, breach, deliberate conduct) established; punitive action is only taken in the clearest of cases
- Following nullification of the Contempt of Court Act, 2016, Section 5(1) of the Judicature Act continues to apply, importing English law including Part 81 of the English Civil Procedure Rules and the requirement of personal service
Court orders
#- 1.That the Notice of Motion application dated 17th August, 2023 by the Plaintiff be and is hereby found to lack merit and is dismissed in its entirety
- 2.That there are no orders as to costs
- Jurisdiction invoked
- Order 40 Rule 3(1), 3(2) and 3(3) of the Civil Procedure Rules, 2010; Section 5 of the Judicature Act (Cap. 8); Sections 1B, 3 and 3A of the Civil Procedure Act (Cap. 21); Section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another (Environment & Land Case 73 of 2021) [2024] KEELC 4969 (KLR)", Case Analysis (2024). Notice of Motion dated 17th August, 2023 (suit filed 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4969/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.