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ELCDismissedNot stated in judgment (Notice of Motion dated 30/06/2022)

Group Twenty Seven Investment Co Ltd v Kiambu Dandora Farmers Co Ltd & 3 others (Civil Suit 61 of 2019) [2023] KEELC 791 (KLR)

Environment and Land Court
14 February 2023
5,073 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner failed to jail company directors for disobeying a court order because he could not prove who did what, when, or that they were directors at all.

What this practically means

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Executive summary

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By a Notice of Motion dated 30/06/2022 brought under Order 40 and Order 45 of the Civil Procedure Rules and sections 3A and 80 of the Civil Procedure Act, the Plaintiff sought committal of all nine directors of the 1st Defendant company to jail for six months for breach of a consent status quo order issued on 29/10/2019 by Okong'o J, a mandatory injunction compelling removal of structures erected on the suit parcels, police-supervised enforcement, and review of the consent order to permit him to erect a perimeter wall. The 1st Defendant denied any demolition or construction, contending the photographs produced were undated and unauthenticated and that the applicant bore the burden of proof. Mogendi J (Mogeni J) framed three issues. On contempt, the court held that although the consent order was clear and served, the photographs lacked time stamps and did not show the directors or anyone acting on the company's instructions performing the alleged acts; no CR-12 confirmed the listed directors, some of whom were allegedly deceased, so the contempt claim was misconceived. On the mandatory injunction, applying Kenya Breweries v Okeyo and Kaloki v Ouma, the court held that no special circumstances existed and the case was not so clear as to be decided at once, given competing ownership claims. On review, no sufficient ground was shown since no disobedience of the status quo order had been proved. The application was dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether all the directors of the 1st Defendant are guilty of contempt of court order issued on 29/10/2019
  2. 2.Whether the Plaintiff/Applicant should be granted orders of mandatory injunction at the interlocutory stage
  3. 3.Whether the Plaintiff/Applicant has established a case for review of the court order given on 29/10/2019

Key legal issues

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01

Contempt of consent status quo orders

Holding

Contempt was not proved

Reasoning

The consent order of 29/10/2019 was clear and served on the 1st Defendant, but the applicant's only proof of breach was undated, time-stamp-less photographs that did not show the directors or anyone acting on the company's instructions performing the alleged acts. No CR-12 confirmed the listed persons were directors, some being deceased. He who alleges must prove.

p. 8
02

Mandatory injunction at interlocutory stage

Holding

Refused

Reasoning

Following Kenya Breweries v Okeyo and Kaloki v Ouma, a mandatory injunction at interlocutory stage requires special circumstances over and above a prima facie case, in clear cases suitable for immediate decision. Here claims to ownership compete and require full trial; the court could not tell who owns the suit parcels.

p. 9
03

Review of the 29/10/2019 consent order

Holding

Refused

Reasoning

Under section 80 CPA and Order 45 Rule 1, review grounds are restricted. The applicant sought to vary the consent status quo order to erect a perimeter wall, but having found no proof of disobedience or ongoing construction by the 1st Defendant, no sufficient ground for review was shown.

p. 10

Legal principles established

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  • To establish civil contempt, the applicant must prove that the terms of the order were clear and unambiguous, that the defendant had knowledge of the order, that the defendant breached it, and that the breach was deliberate
  • A mandatory injunction can be granted at the interlocutory stage only in clear cases and where special circumstances exist
  • Review is restricted to discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, without unreasonable delay

Court orders

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  1. 1.The Application dated 30/06/2022 is dismissed with no orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act and Order 40 Rules 1, 2 & 3(1), (2) and (3) and Order 45 Rules 1, 2 & 3 of the Civil Procedure Rules

Relief refused

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Committal of all directors of the 1st Defendant to jail for six months for contempt

Photographic evidence lacked time stamps and no evidence connected the named directors to the alleged contempt; no CR-12 produced to confirm directorship

p. 8

Mandatory injunction to remove structures, walls and buildings on the suit property

No special circumstances shown and the case is not so clear that it ought to be decided at once

p. 9

Review/varying of the consent order of 29/10/2019 to allow erection of a perimeter wall

No sufficient ground for review established; no proof of disobedience of the status quo orders

p. 10

Costs

Dismissed with no orders as to costs

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.

It follows that I did not find any basis for the Application dated 30/06/2022. The same is dismissed with no orders as to costs.
p. 10Final orders/disposition
In the absence of any such evidence, it follows that the plaintifi/applicant's application to have all the directors of the 1st Defendant company cited for contempt was misconceived and without any basis.
p. 8Burden of proof in contempt
I therefore decline to grant orders of Mandatory injunction.
p. 9Interlocutory mandatory injunction
It is the plain and unqualified obligation of every person, against, or in respect of, whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged.
p. 7Duty to obey court orders (Hadkinson)

Issues in the judgment

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minor

The judgment inconsistently dates the consent order as issued on 28/02/2019 and re-affirmed on 29/10/2019 in one passage, while elsewhere it is consistently referred to as the order of 29/10/2019

minor

The 1st Defendant's replying affidavit asserts death certificates were attached but the court records they are absent from the record

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, "Group Twenty Seven Investment Co Ltd v Kiambu Dandora Farmers Co Ltd & 3 others (Civil Suit 61 of 2019) [2023] KEELC 791 (KLR)", Case Analysis (2023). Not stated in judgment (Notice of Motion dated 30/06/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/791/eng@2023-02-14

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