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ELCDismissedNot stated in the judgment excerpt (suit against Mwadi Women Entrepreneurs Ltd & Others arising from CMCC Misc No. E010 of 2022)

Realty Brokers Limited v Mwadi Women Entreprenuers Ltd & 4 others (Environment & Land Case E009 of 2023) [2024] KEELC 3804 (KLR)

Environment and Land Court
22 April 2024
8,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of LR No. 209/10211, filed a notice of motion dated 17th July 2023 seeking police security to enforce interim orders of 13th July 2023, authority to evict the 1st Defendant from the suit property, and that the 1st Defendant's directors be cited and committed for contempt for violently retaking possession on 14th July 2023. The 1st Defendant opposed via a preliminary objection and replying affidavit, contending the suit was res judicata following the judgment of Hon. D.W. Mburu in CMCC Misc No. E010 of 2022, that the court lacked jurisdiction, and that service of the orders was never effected. The 5th Defendant (Nairobi County Government) opposed on grounds of misjoinder under Order 1 Rule 10. The court framed five issues. It held the suit was not res judicata: the Plaintiff was not a party to the lower court suit, the cause of action differed, and the magistrate's court lacked pecuniary jurisdiction over a property worth about Kshs 1 billion - a finding the review court (Hon. A.N. Ogonda) reached without deciding the review on its merits. Not being a party, the Plaintiff could not have appealed, and the court invoked its inherent jurisdiction under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and its land jurisdiction under Article 162(2)(b) to entertain the suit. The 5th Defendant was struck out as misjoined. The contempt prayers failed: the corporate veil had not been lifted, service by email and WhatsApp was unproven absent delivery receipts, and breach was not established to the elevated standard. The request for police-assisted eviction was refused since the 13th July orders were injunctive, not eviction orders, and possession remained disputed. The application was dismissed with costs to the Plaintiff, and the 5th Defendant struck out with costs.

Questions the Court framed

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

  1. 1.Whether this suit is res judicata.
  2. 2.Whether this court has the jurisdiction to determine this suit.
  3. 3.Whether the 5th Defendant has been misjoined and offends the provisions of Order 1 Rule 10 of the Civil Procedure Rules 2010.
  4. 4.Whether the 1st Defendant's directors should be cited for contempt.
  5. 5.Whether this court should order the police to effect the orders dated 13th July 2023.

Key legal issues

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01

Whether the suit is res judicata

Holding

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

Reasoning

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.

p. 7
02

Whether the court has jurisdiction over the suit

Holding

Yes; the court invokes its inherent jurisdiction and its jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act

Reasoning

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.

p. 9
03

Whether the 5th Defendant (Nairobi County Government) is misjoined

Holding

Yes, struck out; no relief sought against it and no effective decree requires its presence

Reasoning

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.

p. 11
04

Whether the 1st Defendant's directors should be cited for contempt

Holding

No; contempt not proved - corporate veil not lifted, service not properly proved, breach not established

Reasoning

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.

p. 16
05

Whether police should be ordered to enforce the orders of 13th July 2023

Holding

No; the orders were injunctive and stay orders, not eviction orders, and possession was disputed

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.The 5th Respondent is hereby struck out from this suit with costs.
  2. 2.The Plaintiff shall bear the costs of the application.
  3. 3.The orders sought against the 1st Defendant's directors and officials are dismissed (contempt prayers dismissed).

The bench

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

majority

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

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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

p. 13

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

p. 17

Costs

The 5th Defendant struck out with costs; the Plaintiff to bear the costs of the application.

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.

a. The 5th Respondent is hereby struck out from this suit with costs.
p. 17Final orders - striking out 5th Defendant
b. The Plaintifi shall bear the costs of the application.
p. 17Final orders - costs of the application
In conclusion, this court dismisses the Plaintifi's application dated 17th July 2023
p. 17Dismissal of the notice of motion
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.
p. 7Res judicata not established
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.
p. 9Inherent jurisdiction of the ELC
As the Plaintifi has neglected to apply to lift the corporate veil, it cannot therefore not cite the 1st Defendant's directors for contempt.
p. 13Contempt against directors - corporate veil
I reiterate that a sent email is not the same as a delivery receipt.
p. 15Electronic service - email
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.
p. 17Refusal of eviction/security orders

Issues in the judgment

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material

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

minor

Date of the magistrate's judgment appears inconsistently as 1st April 2022 and 27th April 2022

minor

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

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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, "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.