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ELRCDismissedCivil Suit No 28 of 2014· [2020] KEELRC 1710 (KLR)

Gabbriela Susat v Cosimo Rosafiq & another [2020] KEELRC 1710 (KLR)

Environment and Land Court
6 February 2020
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Malindi, delivered by J.O. Olola, J on 6th February 2020, determined two applications by the 1st Defendant, Cosimo Rosafiq. By a Notice of Motion dated 2nd October 2019 he sought a stay of execution of orders issued on 24th September 2019 and the setting aside of Warrants of Arrest issued against him. A second Notice of Motion dated 31st October 2019 additionally sought declarations that he had fully complied with the consent order of 19th September 2017 by transferring ten shares in the 2nd Defendant in May 2019, that the Court was functus officio and lacked jurisdiction to order his arrest, and that the Court's process was being used to extort Kshs 501,627.45 not covered by any decree. The applications arose from the Court's Ruling of 26th June 2019, in which it found that the 1st Defendant had not complied with the consent judgment and allowed the Plaintiff's contempt application, leading to a Notice to Show Cause and, after proof of service on 24th September 2019, the issue of a Warrant of Arrest to be effected by the OCS Kilifi Police Station. The Plaintiff, Gabriella Susat, opposed the applications, asserting only partial compliance and that the service charge remained the 1st Defendant's obligation as he was in possession of the suit property when it accrued. The Court held that the 1st Defendant's real complaint was that the Court erred in the Ruling of 26th June 2019, and that his only remedy was an appeal to the Court of Appeal, not a review before the same Court. It further found compliance came only in May 2019, long after the contempt application was filed, and described the supporting affidavit as a vain attempt to scandalize the Court. Both applications were dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Court was functus officio after the consent order was complied with and the matter marked settled

Holding

The functus officio argument failed; the Court had jurisdiction to enforce its orders and any grievance about the Ruling of 26th June 2019 lay in appeal

Reasoning

The Court traced the history of the contempt proceedings: it had ruled on 26th June 2019 that the 1st Defendant had not complied with the consent judgment, and issued summons and later warrants after proof of service. The 1st Defendant's real complaint was that the Court erred in that Ruling, which could only be pursued on appeal. The Court also noted the supporting affidavits did not advance the Applicant's case.

p. 2
02

Whether the 1st Defendant had complied with the consent order of 19th September 2017

Holding

The Court held the 1st Defendant had not complied when the contempt application was filed; the transfer of shares only occurred in May 2019, a year later

Reasoning

The Plaintiff filed the contempt application on 22nd May 2018. The 1st Defendant had by then filed a response but made no attempt at compliance until May 2019, shortly before the impugned Ruling. The Plaintiff also maintained that the outgoing service charge of Kshs 501,627.45 accrued while the 1st Defendant was in possession of the suit property and remained his obligation.

p. 2
03

Whether the warrants of arrest were an extortion tool and their issuance an abuse of process

Holding

The Court rejected the allegation, describing the supporting affidavit as an attempt to scandalize the Court

Reasoning

The 1st Defendant alleged the warrants were issued to extort Kshs 501,627.45 not covered by the consent and to arrest a sick, bedridden old man. The Court treated these contentions as effectively attacks on the correctness of the 26th June 2019 Ruling and held the affidavits did not advance the case, characterizing them as vain attempts to scandalize the Court.

p. 2

Legal principles established

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  • Where a party considers the trial court made an error in a ruling, the proper remedy is an appeal to the Court of Appeal rather than an application for review and setting aside before the same court

Court orders

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  1. 1.The two applications filed by the 1st Defendant dated 2nd October 2019 and 31st October 2019 are dismissed
  2. 2.Costs of the two applications are awarded to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in a suit alleging non-compliance with a consent judgment and orders for 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, "Gabbriela Susat v Cosimo Rosafiq & another [2020] KEELRC 1710 (KLR)", Case Analysis (2020). Civil Suit No 28 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1710/eng@2020-02-06

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