[2024] KEELC 1140 (KLR)

Cottage Limited v KCB Staff Pension Fund & 5 others (Environment and Land Appeal E050 of 2023) [2024] KEELC 1140 (KLR) (29 February 2024) (Ruling)

Neutral citation: [2024] KEELC 1140 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal E050 of 2023

EK Wabwoto, J

February 29, 2024

Between

The Cottage Limited

Appellant

and

Kcb Staff Pension Fund

1st Respondent

Fantasy Auctioneers

2nd Respondent

Matano Nyaaa

3rd Respondent

Elizabeth Njeri

4th Respondent

George Gitonga

5th Respondent

Isaac Murage

6th Respondent

Ruling

1. This ruling is in respect to two applications by the Applicant dated 14th December 2023 and 29th December 2023. The application dated 14th December 2023, was supported by an affidavit sworn by Valerie Rugene in which the Applicant sought the following reliefs:a.…..spent.b.......spent.c.…..spent.d.….spent.e.This Honourable Court be pleased to cite the following persons for aggravated contempt of Court:a.The 1st Respondents and its trusteesb.Matano Nyaa.c.Elizabeth Njeri.d.George Gitonga.f.This Honourable Court be pleased to impose such pecuniary fine and custodial sentence as it may at its discretion determine upon the Contemnors jointly and severally but no less than a fine of Kshs 10,000,000. g.The costs of this application be borne by the Respondents.

2. On the other hand, the application dated 29th December 2023 was supported by the affidavit also sworn by Valerie Rugene in which the Applicant sought:a.….spent.b.….spent.c.Pending the inter-partes hearing and determination of the underlying appeal this Court be pleased vary its order of Stay of Execution issued on 1st December 2023 by suspending and/or removing the condition imposed upon the Applicant requiring it to pay to the 1st Respondent the sum of Kshs. 3,000,000/= within 30 days and to continue to pay the monthly rent in respect of the demised premises comprised in L.R Nos. 91/43 and 99/42 Gigiri.d.The costs of this application be borne by the Respondents.

3. Both applications were premised on nearly the same grounds, including:i.On 1st December 2023 when this matter came up for hearing before Hon. Justice Wabwoto at 8. 00 A.M his Lordship issued a clear and unequivocal Order to Stay the Execution of the Orders of the Business Premises Rent Tribunal issued on 24th November 2023. ii.The Respondents deliberately defied the orders issued by this Court despite their knowledge of the same.iii.The Respondents have continued in their defiance of the Orders of 1st December 2023 by proceeding to not only carry away goods from the subject demised premises in defiance of the Orders of 1st December 2023 and they have inter alia: a) On 2nd December 2023 published an advertisement of their intention to sell the subject goods by public auction, b) Prevented the Applicant from entering the demised premises since mid-morning on 1st December 2023 to date, c) Evinced their intention to lease, assign, pledge, alienate or dispose the subject demised premises comprised in L.R Nos. 91/43 and 99/42 Gigiri to an unknown third party. d) Outrightly refused to obey and/or comply with the Orders of 1st December 2023 regardless of the consequences.iv.On account of the foregoing, the Applicant despite having paid Kshs. 4,000,000/=towards the disputed sum is now completely unable to raise the sum of Kshs. 3,000,000/= within the stipulated period as it has not been in business since 1st December 2023 when the Orders of this Court were defied with reckless impunity.v.Unless this Court intervenes by varying the conditions it imposed as a basis for its Orders of Stay of Execution then the Applicant who has already paid the sum of Kshs. 4,000,000/- towards the amount in dispute and has paid its rent obligations for the month of December 2023 in the sum of Kshs. 800,000/= shall be may be wrongfully deemed to have failed to meet the conditions set by this Court and justice shall be defeated.

4. On 17th January 2024, Learned Counsel Atieno for the Respondent opposed the applications by submitting that the distress for rent occurred between 6. 45am and 8. 00am. It was further submitted that there were no orders or application seeking return of goods and as such the Appellant was trying to divert the Court’s from issue of rent arrears payment.

5. Learned Counsel Marete for the Applicant argued that Prayer 2 of the application dated 5th December 2023 sought for return of goods that were unlawfully removed. Relying on the Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR, it was argued that the Court should protect the weaker party which in this instance was the Applicant who was kicked out of the premises. It was further argued that the questions of rent arrears and financial ability goes to the merit of the appeal and that it should be considered that the appellant had paid Ksh 4,000,000/- to date.

6. I have considered the applications, rival affidavits filed and the submissions made by counsel for the parties. The issues for determination in respect to the said applications are;a.Whether the 1st, 3rd, 4th and 5th Respondents should be cited for contempt?b.Whether the Applicant has met the threshold for variance of this Court’s orders issued on 1st December 2023.

7. An allegation of contempt of court is a serious matter since it puts the liberty and or property of the contemnor at grave risk. It is for that reason that the standard of proof in contempt proceedings is higher than the usual one in civil proceedings of proof on a balance of probabilities.

8. With regards to the issue of contempt, I have considered the case of Sam Nyamweya & Others v Kenya Premier League Ltd and Others [2015] eKLR where it was stated as follows:“Contempt of court is constituted by conduct that denotes willful defiance of or disrespect towards the court or that willfully challenges or affronts the authority of the court or the supremacy of the law, whether in civil or criminal proceedings.”[Emphasis mine]In North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR, the Court discussed the threshold that would constitute contempt as follows: “There are essentially four elements that must be proved to makethe case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: (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; and (d) the defendants conduct was deliberate.” [Emphasis mine]

9. In this instance, the orders for stay of execution were only applicable once payment of Kshs 3,000,000/- was made by the Applicant between 1st December 2023 and 1st January 2024. In effect, the orders would be binding upon the Respondents only upon compliance by the Applicant. As at the time of distress, it is undisputed that the Applicant was in arrears and owed the 1st Respondent. As such, with no compliance by the Applicant, the 1st Respondent was within its right to act upon the orders issued by the Tribunal on 8th August 2023, which stated that:b.The tenant shall clear the arrears of Kshs 11,358,164 as at 28th July 2023. In addition to any rent and incidental costs accrued to date no later than 30th November 2023. c.In default, the Landlord is at liberty to proceed to levy distress for rent….”

10. According to Section 3 of the Distress for Rent Act, it is stipulated that no distress shall be levied between sunset and sunrise or on any Sunday. I have considered the averments of the Applicant and the Respondents in that the auctioneers visited the premises on Friday 1st December 2023 as from 6. 30am and therefore find that the distress was between sunrise and sunset.

11. With regards to the issue of variance of orders, order 45 rule 1 (1) of the Civil Procedure Rules provides as follows:“Any person considering himself aggrieved:(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

12. I have considered that the prayers sought are primarily for review and hinged upon the claim that the Applicant had already paid Kshs 4,000,000/- to the 1st Respondent. A perusal of the Court records confirms that although the alleged payment was made on 27th November 2023 and restated in the Applicant’s letter to the Respondent (of same date), this defence was not argued by the Applicant’s Counsel during hearing of the application on 1st December 2023. Even so, the payment is disputed by the 1st Respondent vide a letter dated 28th November 2023, in which it is claimed that only Kshs 2,800,000/- was received and not Kshs 4,000,000/-

13. The court upon perusal of the payment advices and cheques all dated 27th November 2023 noted that only payments amounting to Kshs 3,500,000 had been made since payment under Reference FT23331D9GY1 did not contain amount paid. I have further considered that following the ruling of the Tribunal, the parties were engaged in negotiations for settlement which as at 1st Respondent’s response dated 28th November 2023 collapsed:“…Kindly note that the Pension Fund is unwilling to engage in any negotiations and/or proposals that fall short of the orders of the Honourable Tribunal…”

14. Bearing all the above in mind, I find that the Applicant has not presented any iota of new evidence that would occasion variance of the orders issued on 1st December 2023.

15. In the foregoing, this court finds no merit in the applications dated 14th December 2023 and 29th December 2023 and the same are hereby dismissed with an order that each party bears own costs of the applications.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH FEBRUARY 2024E.K. WABWOTOJUDGEIn the presence of:Mr. Kithinji Marete for the Appellant/Applicant.Ms. Atieno for the 1st-6th Respondents.Court Assistant – Caroline Nafuna.