Ringsview Apartments Limited v Vishnu Builders Company Limited & another (Environment & Land Case 782 of 2014) [2024] KEELC 7195 (KLR)
The bottom line
#Kenya's Environment and Land Court found a company and its director guilty of contempt for selling an apartment protected by court orders, with sentencing pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of 1st July 2014 restrained the Plaintiff from dealing with Apartment A4
Yes - the order barred the Plaintiff from transacting with third parties over apartments the Defendants claimed to have purchased, and Apartment A4 was expressly claimed in the 2nd Defendant's replying affidavit and counter-claim.
The order of 1st July 2014 varied the injunction to bar the Plaintiff from transacting with third parties over apartments claimed by the Defendants. The 2nd Defendant had identified Apartment A4 in his replying affidavit dated 9th July 2014 and in the defence and counter-claim dated 17th August 2014, both before the order of 30th October 2014. The court held the order was specific and not ambiguous, and that the Plaintiff's doubt obliged it to await determination of the suit.
Whether Apartment A4 was sold before the suit was filed, defeating the contempt claim
No - apart from an offer letter dated 4/4/2014, there was no corroborative evidence of an earlier sale; the bank transaction evidenced payment of Kshs.17,000,000 by Joram Mwaura Kiuna on 9th July 2016.
The Plaintiff asserted the sale predated the suit and only registration was delayed. The court found the only documentary evidence of payment was a 2016 bank transaction, and no transfer forms, day book reservations or bank correspondence corroborated an earlier sale. The impugned register entries were made in 2016 without any variation to the subsisting orders, establishing dealings in breach.
Which director is liable for the company's contempt
Dr. Benjamin Mbira Gikonyo, who did not controvert that directors are liable for the company's actions; Emanuel Gikonyo was excused for want of proof of directorship in 2016.
A company acts through its directors, and the Applicant relied on section 34(1) of the Companies Act. The Respondent's own deponent did not dispute the principle but raised Emanuel Gikonyo's non-directorship for 2014-2016. Since the burden of proving directorship at the material time lay on the Applicant and no Registrar of Companies search was produced against Emanuel, only Dr. Benjamin Mbira Gikonyo was held culpable.
Legal principles established
#- For civil contempt the applicant must prove the terms of the order, knowledge of the terms by the respondent, and failure to comply; wilfulness and bad faith are then normally inferred.
- Where a restraining order refers to all apartments a party claims to have purchased, pleadings and affidavits defining the claim suffice to give the order specificity; a party in doubt must await determination of the suit before dealing with claimed units.
- The burden of proving that a named director held office at the material time lies on the applicant in contempt proceedings.
Court orders
#- 1.A finding that the Plaintiff was in contempt of the orders of 1st July 2014 and 30th October 2014 by dealing with Apartment A4
- 2.Dr. Benjamin Mbira Gikonyo found culpable and ordered to appear in court to show cause and for sentencing on a date to be given at delivery of the ruling
- Jurisdiction invoked
- Section 5(1) of the Judicature Act and Section 63(c) of the Civil Procedure Act (power to punish contempt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ringsview Apartments Limited v Vishnu Builders Company Limited & another (Environment & Land Case 782 of 2014) [2024] KEELC 7195 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7195/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.