Whether the Appellants are entitled to the orders sought
4.We note that the Appellants are principally seeking that the Honorable Tribunal finds the 1st Respondent and the directors of the 2nd Respondent and its project manager in contempt of the tribunal and commit them to civil jail for a period of 6 months for the disobedience of the Tribunal directions dated 3rd April 2023 and Section 129(4) of EMCA.
5.According to the Black’s Law Dictionary:
6.Further, in Hadkinson –v- Hadkinson (1952) 2 All ER. 567, it was held that: It is plain and unqualified obligation of every person against or in respect of, who an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”
7.The principles governing grant of contempt orders are now well settled. As stated in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others  eKLR:
8.Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:
9.On the first element, we note that on 3rd April 2023, the Honourable Tribunal gave directions on how to proceed and drew parties’ attention to the provisions of Section 129(4) of EMCA. The said provision states as follows;
10.Our interpretation of the above provision is that the same confers an automatic status quo order once an appeal is filed at the tribunal. As such, once the appeal was filed and directions of 3rd April 2023 issued, parties were supposed to maintain the status quo then obtaining, and in particular stop the construction or any other activity on the suit property. It is therefore our finding the terms of the orders were clear, unambiguous and binding on the parties herein.
11.Of course, we note the sentiments by the 2nd Respondent that Section 129(4) of EMCA was amended. The effect of the amendment of was to do away with the automatic status quo order. However, the High Court sitting at Nairobi in Petition Number 268/2018 and Petition Number 361/2028 issued conservatory orders suspending the amendments. No party herein has provided any evidence to show that the said conservatory orders were lifted.
12.On the 2nd element, we note that the Respondents’ advocates were duly served with tribunal’s directions/orders. The Appellants’ have annexed an affidavit of service to that effect. Since the Respondent’s advocates were served with the said orders, there is a presumption, which is not unfounded, that they must have informed their clients and hence it can be deduced that the Respondents had knowledge of the orders. This was the holding of Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited,  Eklr, where the Court held that the knowledge of the court order by the advocate of the alleged contemnor is sufficient for the purposes of contempt proceedings. The Court stated as follows:
13.It is therefore our finding that the Respondents had knowledge and/or proper notice of the orders. In any event, the Respondents have not denied that they were aware of the said orders.
14.On the 3rd element, we note that in its Replying Affidavit, the 2nd Respondent has admitted that they continued with construction until they were issued with a stop order by the 1st Respondent on 2nd August 2023. In essence they have admitted that they acted in breach of the tribunal orders from the time they were issued on 3rd April 2023 upto 2nd August 2023. With regards, to the 1st Respondent, the Appellants have not shown how he acted in breach of the tribunal orders.
15.On the fourth and final element, whereas the 2nd Respondent acted in breach of the tribunal orders, it is our view that the same was not deliberate. In its Replying Affidavit, the 2nd Respondent has explained at length that they thought that the 2018 amendments which dispensed with the automatic status quo orders were operational. Of importance to note, is that once, they were issued with a stop order by the 1st Respondent, the 2nd Respondent stopped any further construction on the site. No evidence has been provided to show that the construction is still ongoing. It is thus our finding that the 2nd Respondent did not deliberately act in breach of the tribunal orders.
16.For one to be found guilty of contempt, it must be shown that their conduct was deliberate and intentional. This was the holding of Mativo J. (as he then was) in the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others(supra), where the Learned Judge held as follows:
17.Be that as it may, we note that apart from the 1st Respondent, the other parties sought to be cited for contempt are not parties to this suit. They are described as directors and project manager of the 2nd Respondent. The 2nd Respondent is a limited liability company. It is an elementary principle of company law that a company is a separate legal entity, and the corporate veil has to be lifted for a director or an officer of the company to be held personally liable for the acts or omissions of the company.
18.The Appellants did not apply to cite the 2nd Respondent for contempt nor did they seek to pierce the corporate veil. It therefore follows that the orders seeking to cite the 2nd Respondent’s directors and officers for contempt are legally untenable. Our finding is informed by the holding of the Court in Katsuri Limited v Kapurchand Depar Shah  eKLR, where it was held as follows:
19.The above position was upheld by the Court of Appeal in the case of Geoffrey Kathuri Kison & 10 others v East African Portland Cement Co. Ltd & 5 others  eKLR, where the Appellate Court observed as follows:
20.In view of the above analysis and findings, the conclusion becomes irresistible that the Appellants’ Notice of Motion Application dated 11th May 2023 does not satisfy the prerequisites for the Tribunal to grant the orders sought. Accordingly, we dismiss the said Application with no orders as to costs.