https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3791

Al Bayt Properties Ltd t/a Al Bayt Properties Hotel v Hannington & 2 others (Environment and Land Appeal E063 of 2023) [2026] KEELC 3791 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3791 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E063 of 2023 TW Murigi, J June 17, 2026 Between Al Bayt Properties Ltd t/a Al Bayt Properties Hotel Appellant and John Mwabili Hannington 1st Respondent Naomi Nyambura Ndonga 2nd Respondent Director General, National Environmental Management Authority 3rd Respondent Ruling 1.Before me for determination is a Notice of Motion dated 6th May 2025, brought under Order 40 Rule 3 (1) & (2), Order 51 Rule 1 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, in which the 1st and 2nd Respondents seek the following orders:a.Spent.b.That this Honourable Court make an Order condemning the Appellants, Al Bayt Properties Ltd t/a Al Bayt Properties Hotel, and the Director General of the National Environmental Management Authority to Civil Jail for 6 months for disobedience /contempt of this Honourable Court's Orders of the 23rd day of January 2025.c.That the O.C.S Akilla Police station do arrest and avail the Directors of the Appellants and the Director General National Environmental Management Authority to this Honourable Court to answer and/or purge contempt complained of or be committed to jail.d.Any other relief this Honourable Court may deem fit to grant.e.That the costs of this Application be borne by the Respondents. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of Naomi Nyambura Ndonga, the 2nd Respondent, sworn on even date. The Applicants Case 3.The deponent averred that she is the Chairlady of Uchuzi Court Estate in South C. She further averred that the suit against the Appellants was successful both at the Tribunal and on appeal. She argued that the Appellants and the 3rd Respondent were ordered to demolish the buildings and structures on Plot No. Nairobi/Block 103/483 in Uchuzi Court. 4.She asserted that, despite the orders, the Appellants and the 3rd Respondent willfully refused to comply, and the impugned structures remain erected and continue to harm the residents' environment. She stated that efforts to resolve the issue of execution amicably were unsuccessful. 5.The deponent argued that the structures are not only unsightly but also pose a danger to residents, citing obstruction of movement in and out of the estate, disruption of traffic flow, reduction of parking space, and the risk posed by falling debris, especially to children in the vicinity. 6.In conclusion, she urged the Court to allow the application as prayed. The Appellant’s Case 7.The Appellant/Respondent filed a replying affidavit sworn by its director, Abdikhani Aden Ali, in opposition to the application. The deponent averred that the instant application is fatally defective, premature, incompetent and an abuse of the court process, and should be dismissed in limine. He denied the allegations that the Appellant had willfully or deliberately disobeyed the Court orders issued on 23rd January 2025 or the Tribunal's judgment. 8.The deponent averred that after the judgment was delivered on 23rd January 2025, the Applicants neither extracted a formal decree nor had such a decree been approved, issued, or served upon the Appellant as required under Order 21 Rule 8 of the Civil Procedure Rules. He argued that without such a decree, a party could not be cited for contempt of an order that had not been formally extracted, certified, or served. 9.He contended that knowledge of the terms of an order is essential in civil contempt proceedings. He argued that the Respondents did not provide any affidavit of service or proof of personal or constructive service of the order. He maintained that the Appellant was unaware of the alleged order and could not have violated its terms, as it was neither communicated to nor served upon the Appellant. 10.The deponent asserts that the application seeks to hold him and other officers and directors of the Appellant personally liable for the alleged contempt without any evidence that the corporate veil has been lifted or that there are exceptional circumstances justifying personal liability. He argued that directors or officers cannot be cited for contempt for a company's actions unless they have been personally served, deliberately disobeyed the order, and the corporate veil has been lifted by a reasoned judicial decision. He averred that no such order has been sought or obtained. 11.The deponent asserts that the Appellant has consistently been ready and willing to comply with any lawful and valid Court order, but such an order has not been served upon or brought to its attention. He argued that the allegations of willful disobedience and bad faith are unfounded, speculative, and not supported by evidence. In conclusion, he urged the Court to dismiss the application with costs. The 3rd Respondent’s Case 12.The 3rd Respondent filed a replying affidavit sworn by its Director, Dr Mamo B. Mamo, in opposition to the application. The deponent argued that following the delivery of judgment on 23rd January 2025, it was incumbent upon the Applicants to extract the decree and orders issued and serve them on all parties. He stated that the 3rd Respondent became aware of the Appellant's alleged violation of the said orders when it was served with the instant application. 13.He argued that the Applicants' failure to extract and serve the decree or order rendered the application defective due to non-compliance with the provisions of Order 21 of the Civil Procedure Rules. 14.The deponent argued that it was impossible to determine whether negotiations were ongoing between them, as neither the Applicants nor the Appellant, who were based in the same area, had approached him. He claimed that, without being moved by either party, it was impossible to establish the status of the matter or the way forward. 15.Without prejudice to the above, the deponent stated that, according to the Tribunal's order, the 3rd Respondent's obligation would only arise if the Appellant failed to demolish the disputed structure within the specified period. He argued that the Applicants had not notified the 3rd Respondent of any such failure, and therefore the application was premature as against the 3rd Respondent. 16.He contended that the 3rd Respondent is ready and willing to comply with the directions of the court, provided that due process is observed in executing the judgment. 17.The application was canvassed by way of written submissions. The Applicant’s Submissions 18.The 1st and 2nd Applicants filed their Submissions dated 6th March 2026. 19.On behalf of the Applicants, Counsel submitted that the Appellants were aware of the Court’s judgment at all material times and therefore it was unnecessary to extract and serve a decree upon them before they could be expected to comply. Counsel further submitted that the alleged contemnors had admitted the contempt. Counsel urged the court to order the contempt to be purged with immediate effect. The Appellants Submissions 20.The Appellants filed their submissions dated 13th March 2026. 21.On behalf of the Appellant, Counsel argued that the Respondents had not met the required threshold in civil contempt proceedings. 22.Counsel relied on Katsuri Limited v Kapurchand Depar Shah [2016] eKLR, Gatharia K. Mutitika v Baharini Farm Limited, and Ochino & Another v Okombo & 4 Others [1989] KLR 165, to submit that a person cannot be punished for contempt unless the order allegedly disobeyed has been personally served on that person. 23.Counsel further submitted that proceeding against the Appellants' directors in their personal capacities without a prior order lifting the corporate veil was legally untenable. To support this argument, Counsel relied on the doctrine of corporate personality as established in Salomon v Salomon & Co Ltd [1897] AC 22, and Katsuri Limited v Kapurchand Depar Shah [2016] eKLR. Counsel further submitted that the application violates the Appellants' constitutional right to due process under Article 50 of the Constitution of Kenya. In conclusion, Counsel urged the Court to dismiss the application with costs. The 3rd Respondents Submissions 24.The 3rd Respondent filed its submissions dated 3rd October 2025. 25.On behalf of the 3rd Respondent, Counsel submitted that the Applicants failed to comply with the mandatory provisions of Order 21 of the Civil Procedure Rules, 2010, which is fatal to the contempt application. To support this point, Counsel relied on Arisa v Kipkebe Limited; Ryce EA Limited (Objector) [2025] KEELRC 1468 (KLR) and George v Pollman's Tours & Safaris [2023] KEELRC 3347 (KLR). Further reliance was placed on Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR), where the Supreme Court emphasized that procedural fairness is essential in contempt applications, and that without a certified copy of the court order or decree, an application lacked the necessary foundation. 26.Counsel further relied on Emukule v Baraza & another [2022] KEHC 9793 (KLR), Jayne Wangui Gachoka v Kenya Commercial Bank Limited [2013] eKLR, Kenya Human Rights Commission v Attorney General & another [2018] KEHC 9656 (KLR), Cherotich Kiprono Ruto v Reuben Kipngetich & 4 others [2020] KEELC 881 (KLR) and Michael Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others [2018] eKLR. 27.Regarding the 3rd Respondent's responsibility, Counsel submitted that it depended on whether the proponent failed to take the necessary steps in accordance with the order. Counsel argued that, in the absence of any communication regarding such failure, the application against the 3rd Respondent was unfounded. In conclusion, Counsel urged the court to dismiss the application with costs. Analysis and Determination 28.Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination:a.Whether the contempt application is defective; andb.Whether the Applicant is entitled to the orders sought. 29.Regarding the first issue, the Appellant and the 3rd Respondent contend that the application is defective and premature, as the Applicants have not extracted a decree, served it on the parties, or attached it to the application. 30.The Applicants did not deny that they have not extracted a decree in the execution of this Court’s judgment. A perusal of the record shows that a formal decree is yet to be prepared and issued in accordance with the mandatory provisions of Order 21 Rule 8(2) of the Civil Procedure Rules, which provides as follows:“Any party in a suit in the High Court may prepare a draft decree and submit it for the approval of the other parties to the suit, who shall approve it with or without amendment, or reject it, without undue delay; and if the draft is approved by the parties, it shall be submitted to the registrar who, if satisfied that it is drawn up in accordance with the judgment, shall sign and seal the decree accordingly.” 31.The Respondents/Applicants did not offer any explanation for this omission, nor any evidence that the process was initiated and then abandoned, or that the other parties obstructed it. Accordingly, this Court finds that the contempt application is premature and defective. 32.Regarding the second issue, the Court is called upon to determine whether the Appellant is in contempt of Court orders issued on 25th January 2025. 33.Black's Law Dictionary, 9th Edition, defines contempt of court as follows:“conduct that defies the authority or dignity of the court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.” 34.The substantive jurisdiction to punish for contempt is grounded in Section 5 of the Judicature Act, which provides as follows:“(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.” 35.Additionally, Section 29 of the Environment and Land Court Act states as follows:“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 36.In Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another (2005) eKLR, the court observed as follows:“It is essential for the maintenance of the Rule of Law and order that the authority and dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against or in respect to whom an order is made by the court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or void.” 37.It is trite that the purpose of contempt jurisdiction is to safeguard the rule of law and the authority of the Court. In Teachers Service Commission vs Kenya National Union of Teachers & 2 Others [2013] eKLR, the Court held that:“The reasons why the Courts will punish for contempt of Court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the Court or even the personal ego of the presiding judge…it is about preserving and safeguarding the rule of law.” 38.Contempt proceedings are quasi-criminal in nature, and the applicable standard of proof is therefore higher than proof on a balance of probabilities. In Mutitika vs Baharini Farm Limited [1985] KLR 229, 234, the Court of Appeal held that:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order.” 39.The four essential elements that must be established were outlined in Samuel M.N. Mweru & Others v National Land Commission & 2 others [2020] eKLR as follows:a.The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;b.The defendant had knowledge of or proper notice of the terms of the order;c.The defendant has acted in breach of the terms of the order; andd.The defendant’s conduct was deliberate. 40.The first issue for determination is whether the terms of the order were clear. It is not in dispute that a judgment was delivered on 25th January 2025, upholding the National Environment Tribunal's decision. In its determination, the Tribunal issued the following orders:a.The Appellants' appeal be and is hereby allowed.b.The 1st Respondent's decision to issue the Environmental Impact Assessment Licence Number: EIA License No. NEMA/EIA/PSL/23624 to the 2nd Responden be and is hereby set aside;c.The Environmental Impact Assessment Licence No. NEMA/EIA/PSL/23624 issued to the 2nd Respondent herein be and is hereby cancelled;d.A permanent stop order be and is hereby issued restraining the 2nd Respondent either by itself, its servants, agents and or representatives from undertaking any construction or other development on Plot Number Nairobi/Block 103/483 in Uchuzi Court;e.An Environmental Restoration order is hereby issued in the following terms:i.The environmental restoration order is in respect of all the construction work currently undertaken by the 2nd Respondent on and over Plot Number Nairobi/Block 103/483;ii.The environmental restoration order is directed at the 2nd Respondent, Al Bayt Properties Limited T/A Al Bayt Properties Hotel;iii.The environmental restoration order comes into effect immediately upon delivery of this judgment;iv.The 2nd Respondent, Al Bayt Properties Limited T/A Al Bayt Properties Hotel, is hereby directed to demolish all the buildings and/or structures erected on and over Plot Number Nairobi/Block 103/483 in Uchuzi Court within twenty-one (21) days from the date of delivery of this judgment;v.In the event that the 2nd Respondent does not demolish the buildings and/or structures erected on and over Plot Number Nairobi/Block 103/483 in Uchuzi Court as hereby directed, the 1st Respondent shall carry out the demolition at the expense of the 2nd Respondent. 41.The order was clear, unambiguous, and legally binding on the parties. 42.The next issue for determination is whether the Respondents were served or had proper notice of the order. 43.The Applicants argued that the Appellant was aware of the order as the judgment was delivered in the presence of its Advocates. The Respondent contends that the order was not brought to its attention. The Appellant being a company is a legal entity, and the proper procedure is to first apply to lift the corporate veil before proceeding against directors personally, as directors are not personally liable for the company's debts, actions, or omissions, unless such liability has been established by a reasoned judicial decision. This principle was confirmed in Katsuri Limited v Kapurchand Depar Shah [2016] KEHC 6447 (KLR). No application has been made to lift the corporate veil, nor has one been obtained in this matter. 44.In contempt proceedings where committal is sought, the alleged contemnor must be specifically identified, joined as a party, and personally served because personal liberty is at stake. A corporate or statutory body acts only through natural persons, and when penal consequences are sought, the individual responsible must be clearly named and given an opportunity to respond. In Republic v Principal Secretary Ministry of Defence ex parte George Kariuki Waithaka (2019) eKLR, the court held that:“Where an order of committal is sought, the alleged contemnor must be personally cited, served, and given an opportunity to show cause since the proceedings are penal in nature.” 45.Similarly, the Director General of the 3rd Respondent is a statutory body that acts only through natural persons. It is not in dispute that the Director General alleged to be in contempt was neither joined in his individual capacity nor served with the application, the grounds, or notice of committal. These omissions are not mere technicalities; they go to the heart of the application and offend the principles of natural justice. On this ground alone, the application is rendered incompetent. 46.The prayer to commit the Directors of the 1st Appellant and the Director General of the 3rd Respondent to civil jail in their personal capacities is therefore without merit. 47.The Respondents, relying on Shimmers Plaza Limited v National Bank of Kenya Limited [2015] KECA 945 eKLR, submit that formal service of a decree was unnecessary because the Appellants and the 3rd Respondent were aware of the judgment. However, applying that principle requires that the advocates of the alleged contemnors were in deed present in court when the order was made, or were duly served with notice of the proceedings leading to the order. 48.In the matter at hand, no affidavit of service has been presented demonstrating that the parties' respective advocates were served with hearing notices for the proceedings in which judgment was delivered. Further, the court’s record shows that while the Appellant and the 1st and 2nd Respondents’ Counsels were present at the delivery of the judgment, counsel for the 3rd Respondent was not in court. While the Appellants may be presumed to have knowledge of the judgment of this court, the same cannot be said for the 3rd Defendant. 49.Regarding the letter dated 5th May 2025, which the Respondents cite as proof of notice, the letter does not serve as an independent notice of the court's order. Instead, it informed the Respondents' counsel of an earlier letter and urged compliance with the court's order. It does not constitute formal service of a decree or certified order, nor does it outline the specific terms of the obligation being enforced. 50.The third element requires that the alleged contemnors acted in breach of the terms of the order. It is not refuted that the impugned structures remain standing as of the date of this ruling. On the face of it, the Appellant has not demolished the buildings and structures on Plot No. Nairobi/Block 103/483, and the 3rd Respondent has not intervened to carry out the demolition. However, given the failure to establish proper notice, this court is unable to characterise the inaction as a breach of a known and duly communicated obligation. The third element is therefore not conclusively established in the circumstances. 51.The fourth element requires that the breach was intentional. Intentionality assumes knowledge; a party cannot willfully disobey an order whose terms have not been properly served. Given the findings on the second element, it is not possible to conclude that the non-compliance was intentional in the sense required by the authorities. This element is therefore not established. 52.Regarding the breach by the 3rd Respondent, under the orders of the Tribunal, it was supposed to carry out demolitions following the Appellants' failure to do so. No communications have been presented to demonstrate that the Appellants’ failure was brought to the 3rd Respondent’s attention, who, in turn, failed to obey the said orders of the court and Tribunal. No basis has been established to hold the 3rd Respondent in contempt. 53.In any event, without a certified decree, the Respondent’s application is unlikely to succeed as it does not meet the four-part test necessary to establish contempt. 54.The upshot of the foregoing is that the application is without merit and is hereby dismissed. Each party to bear its own costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF JUNE, 2026............................HON. T. MURIGIJUDGEIn the Presence of:Ms Boyangi for the ApplicantsNgararu Maina for the 3rd RespondentAhmed – Court assistant