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ELCDismissedELC Mombasa (constitutional petition) — notice of motion dated 6th November 2023· [2025] KEELC 5451 (KLR)

Philip & 22 others v National Housing Corporation & another (Environment and Land Petition E006 of 2023) [2025] KEELC 5451 (KLR)

Environment and Land Court
23 July 2025
2,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Mombasa Environment and Land Court dismissed a contempt application against National Housing Corporation because the petitioners couldn't prove any court order was actually breached.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (S. M. Kibunja, J) on a notice of motion dated 6th November 2023 in which the petitioners sought committal of the National Housing Corporation and its managing director, David Mathu Njuguna, to jail for contempt of a status quo order issued on 19th October 2023, together with a two-year sentence, a fine, and an order to purge the contempt by restoring their premises. The 1st respondent opposed the application through the replying affidavit of Bernadette Karanja, deposing that 65 of 84 tenants had vacated by January 2018 notices, the vacated site had been handed to the contractor on 29th September 2023, the remaining 19 houses were intact, and no petitioner identified a demolished house. The court framed three issues: proof of breach, responsibility of the managing director, and costs. It held that the status quo order, granted in terms of an alternative prayer, did not specify what status quo was to be maintained; the petitioners' photographs were not tied to specific houses or tenants; none of them deposed to a specific demolished house; the respondent's deposition remained unrebutted; and the order had not been personally served on the managing director. The underlying applications having been dismissed on 13th December 2023, the status quo order had lapsed. The court dismissed the application with costs to the 1st respondent, holding that costs follow the event under section 21 of the Civil Procedure Act.

Key legal issues

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01

Whether disobedience of the status quo order of 19th October 2023 was proved

Holding

Not proved; the petitioners did not identify which petitioner's house was demolished and the 1st respondent's unchallenged evidence showed the vacated houses had been handed to the contractor before the order

Reasoning

The order did not specify what status quo was to be maintained. None of the petitioners deposed to a specific demolished house, and their photographs were not tied to specific tenants or house numbers, unlike the respondent's. The respondent's deposition that 65 tenants had vacated and the site was handed over on 29th September 2023 remained unrebutted, leaving no evidence of breach after the order.

p. 4
02

Whether the managing director could be cited for contempt

Holding

No; the order was not personally served on him, which was incumbent on the petitioners

Reasoning

Service of the order with penal notice was effected on 'Fausta Mghendi' at the respondent's offices, who declined to acknowledge receipt. For a contempt citation against a named individual, personal service on that individual is required; service on another officer of the corporation does not suffice against the managing director personally.

p. 3
03

Effect of the lapse of the status quo order

Holding

The status quo order was no longer in force, having been superseded by the dismissal of the underlying applications on 13th December 2023

Reasoning

The applications dated 18th October 2023 and 31st August 2023, on which the status quo order was predicated, were heard inter partes and dismissed by a ruling delivered on 13th December 2023. With no subsisting order, there could be no continuing contempt, reinforcing dismissal of the application.

p. 4
04

Costs

Holding

Costs follow the event; petitioners to pay the 1st respondent's costs

Reasoning

Under section 21 of the Civil Procedure Act, costs follow the event unless the court directs otherwise for good reason. No good cause was shown to depart from that principle given the petitioners' unsuccessful contempt application.

p. 4

Legal principles established

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  • In contempt proceedings, the order alleged to have been breached must be personally served on the named contemnor for committal to succeed
  • Where a status quo order is not phrased with specifics, the party alleging breach must establish with specificity what the status quo was and how it was breached

Court orders

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  1. 1.That the notice of motion dated 6th November 2023 is without merit
  2. 2.That the application is dismissed with costs to the 1st respondent
Jurisdiction invoked
Order 40 Rule 3(1) to (3) of the Civil Procedure Rules and sections 1A, 1B & 3A of the Civil Procedure Act (contempt application arising from a constitutional petition before the ELC)

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, "Philip & 22 others v National Housing Corporation & another (Environment and Land Petition E006 of 2023) [2025] KEELC 5451 (KLR)", Case Analysis (2025). ELC Mombasa (constitutional petition) — notice of motion dated 6th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5451/eng@2025-07-23

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