Case ID:170177

Danros (K) Limited v Kenya Railways Corporation & another [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Application 9 of 2020

Parties:

Danros (K) Limited v Kenya Railways Corporation & Attorney General

Date Delivered:

04 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Mombasa

Case Action:

Ruling

Judge(s):

Munyao Sila

Citation:

Danros (K) Limited v Kenya Railways Corporation & another [2021] eKLR

Court Division:

Environment and Land

County:

Mombasa

Case Outcome:

Application struck out

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT MOMBASA

MISCELLANEOUS APPLICATION NO. 9 OF 2020

DANROS (K) LIMITED.........................................................APPLICANT

VERSUS

KENYA RAILWAYS CORPORATION......................1

ST

RESPONDENT

HON. ATTORNEY GENERAL...................................2

ND

RESPONDENT

RULING

(Application for contempt of court; application based on the Contempt of Court Act, No. 46 of 2016, which was declared unconstitutional; application based on law that no longer exists thus incompetent and struck out)

1. The application before me is that dated 9 March 2020 said to be brought under Sections 24 and 30 of the Contempt of Court Act, No. 46 of 2016, Laws of Kenya. It seeks two substantive orders which are prayers (2) and (3) respectively as follows :-

(2) That this Honourable be pleased to order the Managing Director, Kenya Railways Corporation be committed to civil jail for contempt for disobedience of the orders issued on 24

th

July 2019 by Hon. Mbichi Mboroki, Chairman in Business Premises Rent Tribunal Case No. 114 of 2019 – Danros (K) Limited vs Kenya Railways Corporation.

(3) That the 1

st

respondent be compelled to pay damages to the applicant.

2. The applicant avers that vide the case No. 114 of 2019 before the Business Premises Rent Tribunal (the Tribunal), the 1

st

respondent was ordered not to evict the applicant from premises located at Kenya Railways Mombasa Goods Shed and was also compelled to effect some repairs at its cost to give effect to some sanitary measures. It is said that the order was served upon the 1

st

respondent on 26 July 2019. It is contended that in blatant disregard of the orders, the 1

st

respondent locked the premises on 4 March 2020 which action has occasioned the applicant loss as the applicant stores foodstuffs therein. The application is supported by the affidavit of Robin Mutuma, a director of the applicant. He has annexed a copy of the order said to have been disobeyed and some photographs to show that the premises has been locked by the 1

st

respondent.

3. In the course of the proceedings, the application was withdrawn as against the 2

nd

respondent.

4. No reply was filed by the 1

st

respondent to oppose the motion and Mr. Njoroge, learned counsel for the applicant urged me to allow it.

5. I have considered the application. I note at the outset that the application is based on the Contempt of Court Act, Act No. 46 of 2012. This statute was declared unconstitutional by Mwita J, in a judgment delivered on 9 November 2018, in

Nairobi High Court Petition No. 87 of 2017, Kenya Human Rights Commission vs Hon. Attorney General & Another

. With that invalidation, the applicant needed to revert back to the procedure and law that was prevailing before the Contempt of Court Act.

6. Since contempt is quasi-criminal, it is critical, that before a person is found guilty, the proper procedure be followed, to prevent injustice and prejudice to the respondent. Indeed, it would not be prudent to convict a person, via the invocation of a procedure that has already been declared unlawful. In issues of contempt, the means will justify the end.

7. I need not say more.

8. This application is premised on law that does not exist and I have no option but to strike it out.

9. I make no orders as to costs.

10. Orders accordingly.

DATED AND DELIVERED THIS 4

TH

DAY OF FEBRUARY 2021.

JUSTICE MUNYAO SILA

JUDGE, ENVIRONMENT AND LAND COURT OF KENYA

AT MOMBASA