Ambala & another v Ambala & another; Butt & another (Contemnor) (Civil Appeal (Application) 116 of 2016) [2023] KECA 867 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to jail property occupants for contempt because the court order they allegedly broke required them to do nothing.
What this practically means
#Executive summary
#Key legal issues
#Whether the contemnors were in contempt of the Court of Appeal judgment of 26th April, 2018
No. The judgment and decree directed no act or omission on the part of the contemnors; the obligation to restore the register fell on the Chief Land Registrar, who complied.
The Court reviewed the four elements for contempt from Kristen Carla Burchell v Barry Grant Burchell and found the third element - breach of the order - absent. The decree obliged the Chief Land Registrar to restore register entries as of 29th June, 2016; it contained no order for eviction or vacatur directed at the contemnors. Their continued occupation could not constitute disobedience of an order that imposed no obligation on them. The application was in substance an eviction suit disguised as contempt proceedings, and an eviction suit already exists in the ELC.
The applicable law of contempt given the unconstitutionality of the Contempt of Court Act, 2016
The application, premised on the struck-down Act, rested on non-existent law, but the Court proceeded on the pre-Act English law as restated in Christine Wangari Gachege, given the applicant appeared in person.
The High Court in Kenya Human Rights Commission v Attorney General had declared the entire Contempt of Court Act unconstitutional, so the motion citing sections 5, 4 and 31(j) & (k) was premised on non-existent law and liable to be struck out in limine. Because the applicant was not a lawyer, the Court nonetheless considered the application on its merits under the law restated in Christine Wangari Gachege v Elizabeth Wanjiru Evans, namely English law on committal for contempt adopted via section 5(1) of the Judicature Act.
Legal principles established
#- A party cannot be held in contempt unless the order breached was clear and unambiguous, known to the party, breached, and the breach deliberate; contempt proceedings cannot be used to obtain relief (such as eviction) that the decree never granted.
- Contempt proceedings are quasi-criminal and the standard of proof is higher than the balance of probabilities in ordinary civil proceedings.
- Following the declaration of the Contempt of Court Act, 2016 as unconstitutional, the applicable law on contempt in Kenya is the English law on committal for contempt under rule 81(4) of the England Civil Procedure Rules, adopted by section 5(1) of the Judicature Act.
Court orders
#- 1.Dismissal of the notice of motion dated 30th December, 2020
- 2.Costs of the application awarded to the contemnors
- Jurisdiction invoked
- Sections 5, 4 and 31(j) & (k) of the Contempt of Court Act No. 46 of 2016 and the inherent jurisdiction of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ambala & another v Ambala & another; Butt & another (Contemnor) (Civil Appeal (Application) 116 of 2016) [2023] KECA 867 (KLR)", Case Analysis (2023). Civil Appeal (In-contempt Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/867/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.