Realty Brokers Limited v Mwadi Women Entreprenuers Ltd & 4 others (Environment & Land Case E009 of 2023) [2024] KEELC 3804 (KLR)
The bottom line
#A Nairobi land court refused to jail company directors for contempt or order an eviction because the investor never proved its case to the required standard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this suit is res judicata.
- 2.Whether this court has the jurisdiction to determine this suit.
- 3.Whether the 5th Defendant has been misjoined and offends the provisions of Order 1 Rule 10 of the Civil Procedure Rules 2010.
- 4.Whether the 1st Defendant's directors should be cited for contempt.
- 5.Whether this court should order the police to effect the orders dated 13th July 2023.
Key legal issues
#Whether the suit is res judicata
Not res judicata: the Plaintiff was not a party to the lower court suit, the cause of action differs, and the magistrate's court lacked jurisdiction
The Plaintiff was not a party in CMCC Misc No. E010 of 2022; only the declaration of ownership order touched it. The review application was not determined on merits because the magistrate found lack of pecuniary jurisdiction (property valued at about Kshs 1 billion). The cause of action in the lower court was trespass while here it is ownership. Res judicata elements therefore failed.
Whether the court has jurisdiction over the suit
Yes; the court invokes its inherent jurisdiction and its jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act
Since the Plaintiff could not appeal (not being a party) and its review was not heard on merits, leaving it without remedy would be unjust. The court invoked its inherent jurisdiction under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Article 159, and its wide subject-matter jurisdiction over land disputes.
Whether the 5th Defendant (Nairobi County Government) is misjoined
Yes, struck out; no relief sought against it and no effective decree requires its presence
The plaintiff sought no remedy against the 5th Defendant; the subject matter is not public land; no action of the 5th Defendant was challenged and none would be required if the plaintiff succeeded. Applying the necessary-party tests, an effective decree could be passed in its absence.
Whether the 1st Defendant's directors should be cited for contempt
No; contempt not proved - corporate veil not lifted, service not properly proved, breach not established
Directors cannot be cited for contempt without first lifting the corporate veil. Service by email and WhatsApp lacked delivery receipts as required by Order 5 Rules 22B and 22C. Photographic evidence of breach was undated and of unverified relation to the suit property, failing the elements of breach and deliberateness to the elevated standard.
Whether police should be ordered to enforce the orders of 13th July 2023
No; the orders were injunctive and stay orders, not eviction orders, and possession was disputed
The interim orders of 13th July 2023 granted a temporary injunction and stay until 25th July 2023; they were not eviction orders. Both parties produced insufficient evidence as to who was in possession, so the court would refrain from ordering eviction or enforcement security until possession and ownership were established.
Legal principles established
#- Res judicata requires a former final judgment on the merits by a court with jurisdiction, between identical parties, subject matter and cause of action
- A party who was not a party to the lower court proceedings cannot appeal that judgment
- Review and appeal are mutually exclusive remedies
- Before citing a company's directors for contempt, a party must first apply to lift the corporate veil
- Standard of proof in contempt is higher than balance of probabilities but below beyond reasonable doubt
- A sent email is not the same as a delivery receipt for purposes of proving electronic service
- A suit cannot be defeated for misjoinder or non-joinder of parties; a proper party is one whose presence is necessary to effectually adjudicate all questions
Court orders
#- 1.The 5th Respondent is hereby struck out from this suit with costs.
- 2.The Plaintiff shall bear the costs of the application.
- 3.The orders sought against the 1st Defendant's directors and officials are dismissed (contempt prayers dismissed).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act; inherent jurisdiction under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution
Relief refused
#Citation of the 1st Defendant's directors for contempt and committal to civil jail
Plaintiff failed to apply to lift the corporate veil before citing directors; only one director was allegedly served and no delivery receipts proved service by email or WhatsApp; elements of contempt not proved to the required standard
Order for police security to enforce/evict pursuant to the orders of 13th July 2023
The orders of 13th July 2023 were injunction and stay orders, not eviction orders, and possession was disputed; the court would not order eviction until possession and ownership were established
Costs
The 5th Defendant struck out with costs; the Plaintiff to bear the costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a. The 5th Respondent is hereby struck out from this suit with costs.
b. The Plaintifi shall bear the costs of the application.
In conclusion, this court dismisses the Plaintifi's application dated 17th July 2023
On this basis, it is clear that the parties in the Magistrates' Case and in this case are not the same, and that the court lacked jurisdiction to enter its judgement.
It therefore invokes its inherent jurisdiction, reserved under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution, and finds that it has the jurisdiction to hear and determine this suit.
As the Plaintifi has neglected to apply to lift the corporate veil, it cannot therefore not cite the 1st Defendant's directors for contempt.
I reiterate that a sent email is not the same as a delivery receipt.
The court shall refrain from issuing any orders of eviction, until the parties satisfy the court as to the party in possession of the suit property, and ownership.
Issues in the judgment
#Judgment refers inconsistently to the Plaintiff as 'Al-Haiee Investment Ltd' being the plaintiff in this suit while also describing the 1st Defendant as alleging Al-Haiee was the 1st Respondent in the lower court; the parties' identities across the two suits are not clearly set out
Date of the magistrate's judgment appears inconsistently as 1st April 2022 and 27th April 2022
The 1st Defendant's preliminary objection raising res judicata and jurisdiction is determined as part of the substantive issues but no separate ruling on the objection is recorded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Realty Brokers Limited v Mwadi Women Entreprenuers Ltd & 4 others (Environment & Land Case E009 of 2023) [2024] KEELC 3804 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt (suit against Mwadi Women Entrepreneurs Ltd & Others arising from CMCC Misc No. E010 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3804/eng@2024-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.