Wardpa Holdings Limited & 3 other v Emmanuel Waweru Lima Mathai & another [2016] KECA 587 (KLR)

The statutory basis of contempt in Kenya is Section 5 of the Judicature Act and Section 63(c) of the Civil Procedure Act, which incorporate English practice. Following the Lord Woolf reforms, Order 52 was replaced in its entirety by Part 81 effective 1st October 2012. Rule 81.10 sets out the application procedure, requiring grounds, supporting affidavits and personal service, without any requirement of notice to the Crown Office. The court relied on its own prior decision in Christine Wangari Gachege for this position.

The process server swore he served the 2nd and 3rd appellants at the 1st appellant's Town House office, the 2nd appellant accepting service on behalf of the 4th appellant. That evidence was never challenged by any replying affidavit. Tenants George Baiko Barugu and Simon Kiptum Sang confirmed the order was served on 28th October 2008 and prominently fixed on the doors of the premises, and that the 2nd appellant thereafter threatened tenants and claimed ownership. Following Basil Criticos, knowledge superseded strict proof of personal service.

The file went missing so the order was never extended, but equally never vacated. The court reasoned that assuming lapse upon a missing file would invite impunity by colluding parties. The appellants demolished the premises on 6th November 2008 without giving tenants notice and without any order to demolish. The judge's inference that the appellants, who benefited from the lost file, caused its disappearance was unimpeached, and the fine was upheld.

Although the appellants argued contempt must be proved beyond the civil balance of probability, the court did not directly resolve that standard. It rested instead on the uncontroverted affidavit evidence of service, the tenant testimony, the appellants' failure to reply, and their conduct in demolishing the property and constructing a new building, which demonstrated awareness of the order at the material time.