[2014] KEHC 7698 (KLR)
The court found that the applicant failed to demonstrate the existence of a specific court order that had been contravened, which is a prerequisite for instituting contempt proceedings. The court further held that the actions complained of were decisions of a government institution and thus more appropriately...
Source-derived case information.
- Citation
- [2014] KEHC 7698 (KLR)
- Parties
- Plaintiff: Moonglow Assets Limited; Defendant: The Commissioner of Lands; Defendant: The Registrar of Titles; Defendant: The Director of Surveys; Defendant: Hekima Land Surveys Limited; Defendant: Shamji Kalyan Pindoria Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 586 of 2013
- Procedural Posture
- Notice of Motion / Ruling on Ex Parte Application for Leave to Institute Contempt Proceedings
- Outcome
- application dismissed
- Judges
- MM Gitumbi
- Legal Topics
- Contempt of Court, Interlocutory Applications, Judicial Review, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moonglow Assets Limited
Plaintiff
The Commissioner of Lands
Defendant
The Registrar of Titles
Defendant
The Director of Surveys
Defendant
Hekima Land Surveys Limited
Defendant
Shamji Kalyan Pindoria Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Ex Parte Application for Leave to Institute Contempt Proceedings
Legal Issues
- 1 Whether the applicant has demonstrated the existence of a specific court order allegedly contravened by the contemnors.
- 2 Whether contempt proceedings are appropriate in the circumstances or whether the applicant should pursue judicial review.
- 3 Whether the issues raised are suitable for determination through an interlocutory application.
Ratio Decidendi
The court found that the applicant failed to demonstrate the existence of a specific court order that had been contravened, which is a prerequisite for instituting contempt proceedings. The court further held that the actions complained of were decisions of a government institution and thus more appropriately challenged through judicial review, a process the applicant had already commenced and obtained interim relief. The court also noted that the issues raised in the application were substantive matters to be determined at the main trial and not through interlocutory proceedings. Consequently, the court declined to grant leave for contempt proceedings and dismissed the application,...
Court Disposition
application dismissed
Orders
- Leave to institute contempt proceedings is declined.
- All consequential prayers in the application are declined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENT AND LAND DIVISION
ELC. NO. 586 OF 2013
MOONGLOW ASSETS LIMITED……………………....PLAINTIFF
VERSUS
THE COMMISSIONER OF LANDS……..………....1ST DEFENDANT
THE REGISTRAR OF TITLES……………………….2ND DEFENDANT
THE DIRECTOR OF SURVEYS..……………………3RD DEFENDANT
HEKIMA LAND SURVEYS LIMITED ……….……4TH DEFENDANT
SHAMJI KALYAN PINDORIA LIMITED ..………5TH DEFENDANT
RULING
Before me for determination is the ex-parte Notice of Motion dated 5th February 2014 filed by the 5th Defendant/Applicant seeking, inter alia, leave to institute contempt of court proceedings against the individuals named therein.
After a careful perusal of the application, I have formed two impressions. The first is that the Applicant has not shown that there is a specific order of this court issued by a particular judge on a particular date which the contemnors supposedly contravened. The matter complained of is a decision taken by a government institution namely the National Land Commission. To my mind, therefore, the wrong that the Applicant seeks to correct is within the province of a judicial review application rather than a substantive contempt application. I am aware through the submissions of the 5th Defendant’s counsel that in fact, the 5th Defendant has commenced judicial review proceedings against the same individuals and has even obtained a stay of the actions he complains about herein. I consider it unnecessary to proceed with both proceedings running in parallel.
My other impression of this application is that it is premised on issues which arise in this suit which this court will consider at the main trial. Those issues cannot be determined through an interlocutory application such as this one.
In addition, as I have stated in an earlier ruling delivered in this matter, parties to this suit should focus all their effort towards obtaining a full and final resolution of this dispute through the main trial. I hold the view that interlocutory applications are in fact standing in the way of achieving this and should be avoided.
With this background, therefore, I decline to grant leave as requested and also decline to grant the other consequential prayers in this application. Accordingly, I hereby dismiss this application. Costs shall be in the cause.
SIGNED AND DELIVERED AT NAIROBI THIS 14thDAY OF March 2014
MARY M. GITUMBI
JUDGE