Commercial Bank of Africa Limited & another v Ndonga Limited & 5 others (Environment and Land Case 93 & 1073 of 2016 (Consolidated)) [2025] KEELC 6353 (KLR)
The bottom line
#A Kenyan court refused to jail bank directors for contempt because a dismissal order is not an order anyone can disobey.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ruling of 28th October 2021 amounted to an enforceable order restraining the statutory power of sale
It did not; the Ruling dismissed an application for joint exercise of statutory power of sale and was a negative order, not an injunction
The court had dismissed the application dated 15th November 2019 which sought joint exercise of statutory power of sale, reconstruction of a register and publication of the sale. The dismissal directed the matter to full hearing. A dismissal of prayers is not a positive prohibitive order; it cannot be interpreted to cover issues not before the court, and in light of the earlier 4th October 2018 ruling dismissing injunctive orders, no restraint existed to be breached.
Whether contempt was proved against the Plaintiff/Respondent and its directors
Contempt was not proved; knowledge/service of a clear order and wilful disobedience were not established
Applying Samuel M. N. Mweru and Micheal Sistu Mwaura Kamau, the ingredients of contempt are knowledge of a clear order and wilful disobedience. The applicant tendered no evidence of service upon the directors, and since the order was a negative order, wilful disobedience could not be found.
Whether the court could grant the injunction in the guise of a declaration that the statutory power of sale does not exist
No; that issue had been determined in the ruling of 4th October 2018 and could not be reopened
The declaration sought in prayer (g) was in substance an injunctive order that had already been addressed in the ruling dated 4th October 2018 dismissing the applicant's application for injunctive orders, which remains in force. The court declined to reopen a matter already decided.
Legal principles established
#- To establish contempt the order must be clear and precise, brought to the contemnor's knowledge, and disobeyed wilfully and mala fide; a negative order dismissing an application is not capable of being disobeyed
- A dismissal of an application without more is a negative order that does not restrain a party from acting, and cannot found a contempt charge
Court orders
#- 1.The Notice of Motion seeking contempt orders is dismissed
- 2.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act (contempt jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commercial Bank of Africa Limited & another v Ndonga Limited & 5 others (Environment and Land Case 93 & 1073 of 2016 (Consolidated)) [2025] KEELC 6353 (KLR)", Case Analysis (2025). Not stated in the judgment (references ELC 93 of 2016 as the related suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6353/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.