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ELCDismissedNotice of Motion dated 5/11/2024 (Ruling delivered 17th February 2025)· [2025] KEELC 591 (KLR)

Wainaina & 2 others v Decon Enterprises Limited; Kamotho & another (Applicant) (Environment and Land Case 455 of 2017) [2025] KEELC 591 (KLR)

Environment and Land Court
17 February 2025
3,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to punish parties for disobeying an order because it was never formally served on them, and refused to stop an auction.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Mogeni J) determined a Notice of Motion dated 5th November 2024 in which the Defendants/Applicants sought, among other reliefs, an injunction restraining Galaxy Auctioneers from proceeding with attachment and sale of proclaimed items, a stay of execution of the decree issued on 26th July 2018, and the citation and committal to civil jail of the three Plaintiffs for contempt of the court's orders of 30th September 2024, which had directed the Plaintiffs to exhaust the procedure under Order 22 Rule 35 before executing. The court framed three issues: contempt, stay of execution, and costs. On contempt, the court held that under Section 5 of the Judicature Act (the Contempt Act having been declared unconstitutional) and the four-element test from North Tetu Farmers Co. Ltd, contempt must be proved beyond reasonable doubt, including proof of personal service of the order with a penal notice. The applicant admitted only informing the Plaintiffs' office, never serving the extracted order, and failed to demonstrate how service was effected; the court therefore found contempt not established. On stay, the applicant satisfied none of the three conditions in Order 42 Rule 6(2): no evidence of substantial loss, an unexplained delay of over five years from the 2018 judgment (constituting laches and unclean hands), and no offer of security. The Notice of Motion was dismissed in its entirety with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Whether the Plaintiffs were in contempt of the order of 30th September 2024

Holding

Contempt was not established because personal service of the order and penal notice was not proved to the required standard.

Reasoning

The court adopted the four-element test for civil contempt from North Tetu Farmers Co. Ltd, requiring proof beyond reasonable doubt. The applicant admitted only that it 'informed' the plaintiffs' office, never that it served the extracted order. The plaintiffs disputed service and knowledge, and the applicant failed to demonstrate how service was effected. Doubt as to service meant the knowledge element failed.

p. 5
02

Whether stay of execution of the decree issued on 26th July 2018 should be granted

Holding

Stay was refused as none of the three conditions under Order 42 Rule 6(2) was satisfied.

Reasoning

The applicant offered no evidence of substantial loss that would render any appeal nugatory. The application was filed over five years after the judgment of 26/07/2018 with no explanation for the delay, amounting to laches and unclean hands. No security for due performance was offered. The court therefore declined to exercise its discretion in the applicant's favour.

p. 6
03

The applicable law for contempt applications after the declaration that the Contempt Act is unconstitutional

Holding

Section 5 of the Judicature Act governs contempt applications, and the court would look to substance rather than form notwithstanding that the motion did not cite that section.

Reasoning

Relying on the High Court decision in Kenya Human Rights Commission v Attorney General, the court noted the Contempt Act was declared unconstitutional, leaving Section 5 of the Judicature Act as the applicable law. Although the applicant's motion did not cite Section 5, the court prioritized substance over form in the interest of doing justice.

p. 4

Legal principles established

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  • No order of court requiring a person to do or abstain from doing an act may be enforced in contempt proceedings unless a copy of the order has been personally served with a penal notice endorsed.
  • The four elements of civil contempt must be proved beyond reasonable doubt, a standard higher than the ordinary civil standard.
  • Substantial loss is the loss that would render an intended appeal nugatory and which stay of execution must prevent by preserving the status quo.

Court orders

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  1. 1.The Notice of Motion Application dated 5/11/2024 is unmerited and is dismissed.
  2. 2.The costs of the Application are granted to the Plaintifi/Respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A, 1B, 3A, 34 and 38
  • Civil Procedure RulesOrder 22 Rules 22 and 35; Order 40 Rule 3; Order 42 Rule 6(2); Order 51 Rules 1, 3 and 15
  • Environment and Land Court ActSection 29
  • Judicature ActSection 5

Cases cited (7)

  • Kenya Human Rights Commission Vs. Attorney General & Another
    [2018]eKLR
  • Patrick Wanyonyi Munialo Vs. County Executive Committee (CEC) Member for Water & Natural Resources Bungoma County & 3 Others; Nzoia Water Services Co. Ltd (Interested Party); Kennedy Kilali Wekesa & 2 Others (Contemnor)
    [2019]eKLR
  • North Tetu Farmers Co. Ltd Vs. Joseph Nderitu Wanjohi
    [2016]eKLR
  • Mwangi Wang'ondu Vs. Nairobi City Council
    Appeal No. 95 of 1998
  • Wyclifie Sayia Okungu Vs. Joel Kayeri Risamira & 3 Others
    [2016]eKLR
  • Re Breamblevale Limited
    [1969] 3 ALL ER 1062
  • Mukuma Vs. Abuoga
    (1988) KLR 645
Jurisdiction invoked
Articles 50 & 159 of the Constitution; Sections 1A, 1B, 3A, 34 and 38 of the Civil Procedure Act; Order 22 (Rules 22 & 35), Order 40 Rule 3, Order 51 (Rules 1, 3 and 15) of the Civil Procedure Rules; Section 29 of the Environment and Land Court Act; Section 5 of the Judicature Act (contempt)

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, "Wainaina & 2 others v Decon Enterprises Limited; Kamotho & another (Applicant) (Environment and Land Case 455 of 2017) [2025] KEELC 591 (KLR)", Case Analysis (2025). Notice of Motion dated 5/11/2024 (Ruling delivered 17th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/591/eng@2025-02-17

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