Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 51 of 2018· [2018] KECA 204 (KLR)

Abdi Satarhaji & another v Omar Ahmed & another [2018] KECA 204 (KLR)

Court of Appeal of Kenya
8 November 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeJOJ. Otieno-Odek
4,760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal overturned contempt findings in a family succession dispute, ruling that disobedience can't be punished without proper service and proof.

What this practically means

#

Executive summary

#
This Court of Appeal judgment, delivered by Karanja, Koome and Odek, JJ.A at Mombasa, allowed an appeal against a ruling of the High Court (Thande, J.) in Succession Cause No. 380 of 2008 committing the appellants to punishment for contempt of orders issued on 11th February, 2016. Those orders restrained the 1st appellant from intermeddling with the estate of the late Haji Mohamed Haji Adam, directed him to deposit title documents in court, and required Fatuma Mohamed and the 2nd appellant to render inventories and accounts. The Court confined itself to whether the Judge properly exercised her discretion in the contempt proceedings, applying the Mbogo v Shah standard. Because the contempt application was filed before the Contempt of Court Act, 2016 came into force, the applicable law was Section 5 of the Judicature Act as then in force, importing the law of England, namely Part 81 of the Civil Procedure (Amendment No. 2) Rules, 2012. The Court held that knowledge of the orders could be imputed to the 1st appellant through his counsel's presence in court and his appeal against them, but that his conduct did not amount to willful disobedience to the higher standard of proof applicable in contempt proceedings. As against the 2nd appellant and Fatuma, the orders were mandatory rather than prohibitive, so personal service could not be dispensed with on the basis of notice alone. The Court also faulted the revocation of the existing letters of administration and the issue of a fresh grant to the respondents, who had not applied and did not rank in priority under the Law of Succession Act, thereby improperly converting a testate estate into an intestate one. The ruling of 29th September, 2017 was set aside in its entirety, the contempt application dismissed, with no orders as to costs as a family matter.

Key legal issues

#
01

Whether service of the orders of 11th February, 2016 on the 1st appellant was properly dispensed with

Holding

Yes. The first limb of the orders prohibited the 1st appellant from intermeddling; knowledge of the orders could be inferred from the presence of his counsel in court when the orders were made and from the fact that he appealed against them.

Reasoning

Under the applicable English Part 81 Civil Procedure Rules, personal service of an order with its penal notice is generally required for contempt, but Rule 81.8 permits the court to dispense with service where the person has had notice, for instance by being present when the order was made. Because the first limb of the orders prohibited an act, the notice exception applied. The 1st appellant's counsel was present when the orders issued, and knowledge of an order by a party's advocate suffices as notice to the party; the lodging of an appeal against the orders further evidenced notice.

p. 5
02

Whether the appellants were guilty of willful disobedience of the orders of 11th February, 2016

Holding

No. The evidence did not establish willful disobedience to the required higher standard of proof in contempt proceedings.

Reasoning

The 1st appellant may honestly have believed he was properly performing his duties as executor when collecting rent, given the confusion caused by the earlier orders and the pendency of Civil Appeal No. 54 of 2016; and he had explained that the title documents were not in his possession. The 2nd appellant and Fatuma were directed to do acts rather than refrain from acts, so the notice exception could not apply and personal service was never dispensed with under Rule 81.8(2). The evidence was therefore insufficient to meet the standard that is almost but not exactly beyond reasonable doubt.

p. 5
03

Whether the learned Judge properly revoked the letters of administration issued to Fatuma Mohamed and the 2nd appellant and issued a fresh grant to the respondents

Holding

No. Revocation of the grant could not stand once contempt was not established, and the appointment of the respondents as administrators was improper.

Reasoning

Since the alleged contempt was not proved to the required standard, there was no basis to revoke the letters of administration. Further, the deceased left an unchallenged Will, and turning a testate estate into an intestate estate through fresh grants to the respondents was an improper exercise of discretion. The respondents, as grandchildren, did not rank in priority to the deceased's children under Section 66 of the Law of Succession Act, and no application under Section 67 of the Act had been made by them for the grant.

p. 5
04

The standard for appellate interference with discretionary decisions

Holding

The Court applied the Mbogo v Shah standard and declined to disturb the exercise of discretion unless misdirection or clear wrong resulting in injustice was shown.

Reasoning

The appeal concerned whether the High Court Judge properly exercised her discretion in finding contempt. The Court reiterated the classic test: interference is warranted only where the judge misdirected herself on some matter and arrived at a wrong decision, or where it was manifest from the case as a whole that she was clearly wrong in the exercise of her discretion and injustice resulted. Applying that test, the Court found the discretion had been improperly exercised and set the ruling aside in its entirety.

p. 4

Legal principles established

#
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
  • Where the alleged contemnor's advocate was present in court when an order was made, the advocate's knowledge suffices as knowledge and notice of the order by the party, permitting the court to dispense with personal service.
  • The dispensation from personal service on the ground of knowledge or notice applies only to orders requiring a person not to do an act; for mandatory orders (requiring a person to do an act), personal service cannot be dispensed with on that ground and contempt cannot be founded on service on a party's advocate.
  • A party cannot be held in willful disobedience of a court order where it had no knowledge or notice of the order; willful disobedience cannot be imputed against a party who has no knowledge of the order.
  • An appellate court will not interfere with the exercise of a judge's discretion unless it is satisfied the judge misdirected herself and arrived at a wrong decision, or was clearly wrong in the exercise of discretion resulting in injustice.
  • The applicable law of contempt is the law in force at the time the application for contempt is filed; prior to the repeal of Section 5 of the Judicature Act by the Contempt of Court Act, 2016, that was the law applicable in the High Court of Justice in England.
  • Obedience of court orders is mandatory unless and until the order is discharged, even where the person affected believes the order to be irregular or void.

Court orders

#
  1. 1.Appeal allowed to the extent that the ruling dated 29th September, 2017 and the orders issued thereunder are set aside in their entirety
  2. 2.The orders are substituted with an order dismissing the respondents' application for contempt dated 21st September, 2016
  3. 3.No orders as to costs, being a family matter

Authorities

#

Legislation

  • Law of Succession ActSection 45(2)
  • Law of Succession ActSection 76
  • Law of Succession ActSection 66
  • Law of Succession ActSection 67
  • Law of Succession ActSection 80
  • Judicature ActSection 5
  • Contempt of Court Act
  • Civil Procedure (Amendment No. 2) Rules, 2012Part 81 (Rules 81.5, 81.6, 81.7, 81.8(1), 81.8(2))

Cases cited (8)

  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    [2015] eKLR
  • Hadkinson vs. Hadkinson
    [1952] ALL ER 567
  • Robertson vs. Her Majesty's Advocate
    [2007] HCJAC 63
  • Ram Kishan vs. Sir Tarun Bajah & Others
    Contempt Petition No. 336 of 2013
  • Kothari vs. Qureshi & Another
    [1967] E.A 564
  • Justus Kariuki Mate & another v Martin Nyaga Wambora & another
    [2014] eKLR
  • Mbogo & Another vs. Shah
    [1968] EA 93
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229
On appeal from
High Court of Kenya at Mombasa
Succession Cause No. 380 of 2008
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules, on appeal from the High Court ruling in a succession cause

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Abdi Satarhaji & another v Omar Ahmed & another [2018] KECA 204 (KLR)", Case Analysis (2018). Civil Appeal No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/204/eng@2018-11-08

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