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ELCOtherELC Mombasa (suit on MN/1/3881 / Plot No. 16993/I/MOMBASA, CR 51734) - number not stated in judgment· [2024] KEELC 5228 (KLR)

Imara Educational Foundation Limited v Nur (Environment & Land Case E006 of 2024) [2024] KEELC 5228 (KLR)

Environment and Land Court
10 July 2024
SKS. M. Kibunja
2,839 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff moved the court by notice of motion dated 27th May 2024 under Order 40 rules 2 and 3(1) of the Civil Procedure Rules and Article 159 of the Constitution, seeking the committal of the defendant, Abdulrahman Sharifi Nur, to civil jail for six months for allegedly disobeying an injunction issued on 30th April 2024 barring him from further constructing on Plot No. 16993/I/MOMBASA in Nyali, Mombasa. The application was supported by the affidavit of Carlos Sotz, who deponed that construction continued in flagrant disregard of the order. The defendant opposed the application through his affidavit sworn on 4th June 2024, deposing that the construction is not on the suit property (L.R. No. 16993 or its subdivisions 23989 and 23990) but on L.R. No. 16994, an adjacent plot he does not own. The court framed two issues: whether the plaintiff met the threshold of contempt, and costs. It reviewed the law of contempt, applying Republic v Kajiado County ex parte Kilimanjaro Safari Club and Christine Wangari Gachege to hold that section 5 of the Judicature Act and Part 81 of the English Civil Procedure Rules govern contempt proceedings following the invalidation of the Contempt of Court Act 2016, and adopting the four-element test for civil contempt including wilful and mala fide breach. Finding the defendant's un-rebutted assertion that the construction is on a different parcel dispositive for the moment, the court declined to determine contempt immediately and instead directed a visit to the locus, with the parties at liberty to attend with licensed surveyors, reserving costs. The contempt determination was deferred pending the site visit. The application was therefore neither allowed nor dismissed in full; the orders made were procedural.

Key legal issues

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Whether the defendant is in contempt of the injunction order issued on 30th April 2024

Holding

Undetermined; the court deferred determination pending a locus visit because the defendant's assertion that the construction is on an adjacent plot he does not own was unrebutted

Reasoning

The court set out the legal threshold for contempt, including the four elements requiring proof of deliberate and mala fide breach. However, the defendant deposed that the construction complained of is on L.R. No. 16994, adjacent to the plaintiff's plot, which the plaintiff did not rebut. Given the contest over the identity of the parcel, the court found a site visit necessary before any committal finding.

p. 6
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The applicable law and procedure for contempt applications in Kenya

Holding

With the Contempt of Court Act 2016 declared invalid, section 5 of the Judicature Act and Part 81 of the English Civil Procedure Rules (via Christine Wangari Gachege) govern contempt proceedings

Reasoning

The court adopted the reasoning in Republic v Kajiado County ex parte Kilimanjaro Safari Club: the invalidation of the Contempt of Court Act 2016 meant it never repealed section 5 of the Judicature Act, so the English law on committal, including Rule 81 requirements, continues to apply, and leave (permission) is not required where committal relates to breach of an order.

Legal principles established

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  • The test for contempt of a civil order is that the breach must be deliberate, wilful and mala fide; bona fide non-compliance, even if unreasonable, is not contempt
  • Four elements must be proved for civil contempt: clear and unambiguous order binding on the defendant, knowledge/notice of the order, breach, and deliberate conduct
  • The committal procedure, including personal service of the order, is governed by Part 81 of the English Civil Procedure Rules via section 5 of the Judicature Act

Court orders

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  1. 1.That the determination on whether or not the respondent is in contempt of the court order will wait the outcome of the court visit to the locus on a date to be fixed today.
  2. 2.That the parties be at liberty to be accompanied by a licenced surveyor of their choice, to observe the exercise.
Jurisdiction invoked
Order 40 rules 2 and 3(1) of the Civil Procedure Rules; Article 159 of the Constitution; section 5 of the Judicature Act (Cap 8); sections 1A, 1B and 3A of the Civil Procedure 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, "Imara Educational Foundation Limited v Nur (Environment & Land Case E006 of 2024) [2024] KEELC 5228 (KLR)", Case Analysis (2024). ELC Mombasa (suit on MN/1/3881 / Plot No. 16993/I/MOMBASA, CR 51734) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5228/eng@2024-07-10

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