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Court of AppealPartially AllowedCivil Appeal (Application) 3 of 2007 (UR 2/2007)

REAL VENTURES LIMITED & 3 OTHERS v AKIBA BANK LIMITED & 3 OTHERS [2007] KECA 114 (KLR)

Court of Appeal of Kenya
9 March 2007
EOE. O. O'KubasuJOJ. W. Onyango OtienoWDW. S. Deverell
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a company and its director to face contempt proceedings for breaking a promise made to the court, but refused wider protective orders because the tenants had already moved out.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (O'Kubasu, Onyango Otieno and Deverell JJA) determined a Notice of Motion by Real Ventures Limited and three others seeking leave to commence contempt proceedings against Endebess Development Company Limited and its director, Hon. Fred Gumo, alleging breach of an undertaking recorded in the Court's order of 13 December 2006 in Civil Application No. NAI. 287 of 2006. By that order, counsel for the 2nd respondent, Mr. Ochieng Oduol, had undertaken to ensure that the 2nd, 3rd and 4th applicants had access to the suit premises pending hearing of an application for injunction/stay. The applicants alleged they were harassed, had utilities disconnected, and were ultimately locked out. The 2nd respondent's counsel maintained the undertaking was not breached and that the real dispute was over rent, with the applicants already out of the premises. The Court was satisfied that an undertaking had been given and that the applicants were no longer in occupation; it found a possible breach of a court order pursuant to the undertaking and observed that Hon. Gumo's conduct fell short of honourable behaviour, though it said no more. The Court granted leave to commence contempt proceedings against the 2nd respondent and its director but declined prayers for a restraint order against harassment or eviction and for police enforcement, since the applicants had already left the premises and the dispute was essentially one of rent. Costs were reserved to the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave should be granted to commence contempt proceedings against the 2nd respondent and its director Hon. Fred Gumo for breach of the court's order/undertaking of 13 December 2006
  2. 2.Whether an order restraining the 2nd respondent from harassing, evicting or interfering with the applicants' quiet enjoyment of the suit property should issue
  3. 3.Whether the O.C.S. Kileleshwa Police Station should assist in enforcement of the court's orders

Key legal issues

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01

Breach of an undertaking given to the Court

Holding

The Court found that an undertaking had been given by counsel that the 3rd and 4th applicants would have access to the premises, that the applicants were subsequently locked out, and that a breach may have occurred, justifying leave to bring contempt proceedings against the 2nd respondent and its director.

Reasoning

The order of 13 December 2006 recorded counsel's undertaking to ensure access. From the material before it, the Court was satisfied the undertaking existed and, from counsel's own admission, that the applicants were no longer on the premises. Although explanations (disconnection of water and electricity, a rent dispute) were offered, and the director's conduct 'falls short of honourable behaviour', the Court granted leave for contempt proceedings rather than adjudicating contempt itself at that stage.

p. 3
02

Whether injunctive and enforcement relief could still issue

Holding

The Court declined prayers (2), (3) and (4) because all the applicants had already vacated the premises, leaving no basis for a restraint order or police enforcement.

Reasoning

Equitable relief presumes a live state of affairs to protect. With the applicants already out of the premises, an order against eviction or interference would be futile, and the Court declined to enlist the O.C.S. Kileleshwa Police Station. The underlying dispute was characterised as a rent matter for the appropriate forum, not this Court.

p. 3

Legal principles established

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  • A party who, through counsel, gives an undertaking to the Court that others will have access to premises is bound by it, and breach of such an undertaking may ground contempt proceedings with leave of the Court.
  • The Court of Appeal will not entertain matters that are in substance rent disputes, which belong to the proper forum.

Court orders

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  1. 1.Leave granted to commence contempt proceedings against the 2nd respondent and its Director Hon. Gumo
  2. 2.Prayers (2), (3) and (4) of the Notice of Motion declined
  3. 3.Costs of the application to be costs in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EO
majority
JO
majority
WD
majority
On appeal from
Court of Appeal of Kenya
Civil Application No. NAI. 287 of 2006 (UR.162/2006)
Jurisdiction invoked
Rule 5(2)(b) and Rule 47 of the Court of Appeal Rules and the inherent powers of the Court

Relief refused

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Order restraining the 2nd respondent from harassing, evicting and/or interfering with the applicants' quiet enjoyment of the suit property

All the applicants had already left the premises, so no practical purpose would be served by such an order

p. 3

Enforcement of the orders with the assistance of the O.C.S. Kileleshwa Police Station

The court declined to involve the police; rent disputes belong in the proper forum, not this Court

p. 3

Costs

Costs of this application shall be in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the foregoing, we decline to grant prayers (2), (3) and (4). We however, grant prayer (1) in that leave is hereby granted to commence contempt proceedings against the 2nd respondent and it's Director Hon. Gumo.
p. 4Final orders - leave to commence contempt proceedings granted; other prayers refused
Costs of this application shall be in the intended appeal. These shall be our orders.
p. 4Costs order
we are of the view that the conduct of Hon. Gumo falls short of honourable behaviour. We say no more in that respect.
p. 3Court's view of the alleged contemnor's conduct
The parties and their legal advisers know where to direct rent disputes. This Court is certainly not such a forum.
p. 3Limits of the Court's jurisdiction - rent disputes

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, "REAL VENTURES LIMITED & 3 OTHERS v AKIBA BANK LIMITED & 3 OTHERS [2007] KECA 114 (KLR)", Case Analysis (2007). Civil Appeal (Application) 3 of 2007 (UR 2/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/114/eng@2007-03-09

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