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Court of AppealDismissedNotice of Motion dated April 3, 1985 arising from High Court Suit No. 2343 of 1976

Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR)

Court of Appeal
10 July 1985
AHA.R.W HancoxJNJ.O NyarangiJGJ.M Gachuhi
3,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a contempt claim, ruling that proof of contempt requires a standard higher than balance of probabilities but not quite beyond reasonable doubt.

What this practically means

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Executive summary

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This was an application by notice of motion dated April 3, 1985 in which the three applicants sought to have Councillor Alice Rono, Richard Chirop Rotich, Charaite and Sura cited for contempt of the Court of Appeal's order of December 20, 1984, which had stayed execution of a consent order requiring the applicants to vacate LR 462/R pending the hearing and result of their appeal. The applicants alleged that the respondents, through the named persons, entered the land, ploughed almost the entire cultivatable area including the 30 acres the applicants had cultivated, planted crops, and effectively evicted the applicants. Jurisdiction was founded on section 5(1) of the Judicature Act. The court examined the terms of the stay order and found it merely protected the applicants from eviction and did not specify any rights against ploughing or other use of the land. On the evidence, including the testimony of Councillor Rono whom the court found impressive and truthful, and applying the standard of proof it articulated - higher than the balance of probabilities but almost, not exactly, beyond reasonable doubt - the court held it had not been shown that the respondents intended to drive out the applicants. The court doubted Lord Denning MR's beyond-reasonable-doubt standard in Re Bramblevale for an offence of a quasi-criminal character, and reiterated that committal jurisdiction should be exercised with great reluctance. The application was dismissed with each party bearing their own costs, and the court cautioned both sides against upsetting the delicate balance pending the appeal.

Questions the Court framed

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

  1. 1.Whether the respondents' entry onto and ploughing of the land while the court's stay of execution was in force amounted to contempt of the order of December 20, 1984
  2. 2.Whether the respondents' conduct amounted to constructive eviction of the applicants
  3. 3.What standard of proof applies in contempt proceedings

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The English 'beyond reasonable doubt' standard from Re Bramblevale is too high for contempt, which is quasi-criminal; the correct standard is almost but not exactly beyond reasonable doubt.

Reasoning

The court, agreeing with Mr Khaminwa, held that proof beyond reasonable doubt belongs in criminal cases and should not be extended to offences of a quasi-criminal character. It endorsed Winn LJ's formulation that guilt must be proved with strictness consistent with the gravity of the charge.

p. 4
02

Whether the respondents breached the stay order

Holding

No breach: the stay order only protected the applicants from eviction and did not specify any right against ploughing; the respondents' conduct fell short of constructive eviction.

Reasoning

The order of stay was examined in its entirety; it merely meant the applicants would not vacate pending appeal. It did not prohibit the respondents from ploughing. Tested against the applicable standard of proof, the evidence did not show an intention to drive the applicants out; Rono's evidence of no forcible eviction was unchallenged.

p. 3
03

Reluctant exercise of contempt jurisdiction

Holding

Contempt process should not be used in aid of a civil remedy where another method of doing justice exists.

Reasoning

The court adopted the principle in Re Maria Annie Davies and Re Clement that the committal jurisdiction, being practically arbitrary and unlimited, must be jealously watched and exercised with the greatest reluctance, as a last resort where no other pertinent remedy can be found.

p. 4

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but below proof beyond reasonable doubt.
  • A person who, knowing of an injunction or stay order, wilfully does or causes others to do something to break it is liable to be committed for contempt.
  • Contempt jurisdiction is to be exercised with great reluctance where another remedy exists.

Court orders

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  1. 1.The application for committal for contempt is dismissed
  2. 2.Each party to bear their own costs
  3. 3.Observation that the appeal is set for hearing at the end of the month and that nothing should be done to upset the delicate balance until then

The bench

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

AH
majority
JN
majority
JG
majority
On appeal from
High Court, Nairobi
2343 of 1976
Jurisdiction invoked
Section 5(1) of the Judicature Act (Cap 8)

Relief refused

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Committal of Councillor Alice Rono, Richard Chirop Rotich, Charaite and Sura for contempt of the Court of Appeal's stay order

It was not shown to the requisite standard that the respondents intended to drive out the applicants; the ploughing, though close, did not amount to constructive eviction or breach of the order

p. 5

Costs

Each party bears their own costs

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.

In our view the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt.
p. 4Standard of proof in contempt
We therefore dismiss the application and order that each party bears their own costs.
p. 5Final orders and costs
the language of the order of stay was such that we cannot say that the respondent’s conduct in moving in to plough, though it came close to doing so, amounted to a constructive eviction and therefore to a breach of the order
p. 5No breach of stay order

Issues in the judgment

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minor

Internal inconsistency on the filing date of the suit: the judgment opens by saying the suit was filed on April 1, 1977 but the suit number is 2343 of 1976, and later refers to the consent order as recorded on January 29, 1977 whereas the narrative earlier states the applicants were ordered by consent to vacate on January 29, 1979.

minor

The notice of motion cited the stay order as made on August 28, 1984, but the court identified the operative order as that of December 20, 1984.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR)", Case Analysis (1985). Notice of Motion dated April 3, 1985 arising from High Court Suit No. 2343 of 1976. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/60/eng@1985-07-10

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