[2021] KEELC 4390 (KLR)
The court found that the application for contempt was fundamentally flawed because it was brought under the Contempt of Court Act, No. 46 of 2016, which had been declared unconstitutional and invalid by the High Court in 2018. As a result, there was no legal basis for the application, and the applicant failed to...
Source-derived case information.
- Citation
- [2021] KEELC 4390 (KLR)
- Parties
- Applicant: Danros (K) Limited; Respondent: Kenya Railways Corporation; Respondent: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Contempt of Court
- Outcome
- application struck out as incompetent
- Legal Topics
- Contempt of Court, Eviction Orders, Tribunal Orders, Procedural Invalidity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Danros (K) Limited
Applicant
Kenya Railways Corporation
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Contempt of Court
Legal Issues
- 1 Whether the application for contempt of court is competent when premised on a statute declared unconstitutional.
- 2 Whether the applicant is entitled to orders for committal and damages based on the alleged contempt.
Ratio Decidendi
The court found that the application for contempt was fundamentally flawed because it was brought under the Contempt of Court Act, No. 46 of 2016, which had been declared unconstitutional and invalid by the High Court in 2018. As a result, there was no legal basis for the application, and the applicant failed to revert to the applicable law and procedure that existed prior to the invalidated statute. Given the quasi-criminal nature of contempt proceedings, the court emphasized the necessity of following lawful procedures to avoid injustice. Consequently, the application was struck out as incompetent, and no further orders were made regarding costs.
Court Disposition
application struck out as incompetent
Orders
- The application dated 9 March 2020 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA
MISCELLANEOUS APPLICATION NO. 9 OF 2020
DANROS (K) LIMITED.........................................................APPLICANT
VERSUS
KENYA RAILWAYS CORPORATION......................1ST RESPONDENT
HON. ATTORNEY GENERAL...................................2ND RESPONDENT
RULING
(Application for contempt of court; application based on the Contempt of Court Act, No. 46 of 2016, which was declared unconstitutional; application based on law that no longer exists thus incompetent and struck out)
1. The application before me is that dated 9 March 2020 said to be brought under Sections 24 and 30 of the Contempt of Court Act, No. 46 of 2016, Laws of Kenya. It seeks two substantive orders which are prayers (2) and (3) respectively as follows :-
(2) That this Honourable be pleased to order the Managing Director, Kenya Railways Corporation be committed to civil jail for contempt for disobedience of the orders issued on 24th July 2019 by Hon. Mbichi Mboroki, Chairman in Business Premises Rent Tribunal Case No. 114 of 2019 – Danros (K) Limited vs Kenya Railways Corporation.
(3) That the 1st respondent be compelled to pay damages to the applicant.
2. The applicant avers that vide the case No. 114 of 2019 before the Business Premises Rent Tribunal (the Tribunal), the 1st respondent was ordered not to evict the applicant from premises located at Kenya Railways Mombasa Goods Shed and was also compelled to effect some repairs at its cost to give effect to some sanitary measures. It is said that the order was served upon the 1st respondent on 26 July 2019. It is contended that in blatant disregard of the orders, the 1st respondent locked the premises on 4 March 2020 which action has occasioned the applicant loss as the applicant stores foodstuffs therein. The application is supported by the affidavit of Robin Mutuma, a director of the applicant. He has annexed a copy of the order said to have been disobeyed and some photographs to show that the premises has been locked by the 1st respondent.
3. In the course of the proceedings, the application was withdrawn as against the 2nd respondent.
4. No reply was filed by the 1st respondent to oppose the motion and Mr. Njoroge, learned counsel for the applicant urged me to allow it.
5. I have considered the application. I note at the outset that the application is based on the Contempt of Court Act, Act No. 46 of 2012. This statute was declared unconstitutional by Mwita J, in a judgment delivered on 9 November 2018, in Nairobi High Court Petition No. 87 of 2017, Kenya Human Rights Commission vs Hon. Attorney General & Another. With that invalidation, the applicant needed to revert back to the procedure and law that was prevailing before the Contempt of Court Act.
6. Since contempt is quasi-criminal, it is critical, that before a person is found guilty, the proper procedure be followed, to prevent injustice and prejudice to the respondent. Indeed, it would not be prudent to convict a person, via the invocation of a procedure that has already been declared unlawful. In issues of contempt, the means will justify the end.
7. I need not say more.
8. This application is premised on law that does not exist and I have no option but to strike it out.
9. I make no orders as to costs.
10. Orders accordingly.
DATED AND DELIVERED THIS 4TH DAY OF FEBRUARY 2021.
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT OF KENYA
AT MOMBASA