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Court of AppealDismissedCivil Appeal (In-contempt Application)· [2023] KECA 867 (KLR)

Ambala & another v Ambala & another; Butt & another (Contemnor) (Civil Appeal (Application) 116 of 2016) [2023] KECA 867 (KLR)

Court of Appeal
7 July 2023
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Odhiambo Ambala, appearing in person, moved the Court of Appeal by notice of motion dated 30th December, 2020 seeking to have Farouk Asif Butt and Hadija Asif Butt committed to civil jail for up to six months for contempt of the Court's judgment of 26th April, 2018 in a family dispute over the estate of Aggrey Otieno Ambala. That judgment had set aside the High Court decision of 29th June, 2016, restored earlier consent orders and grants, and directed the Chief Land Registrar to restore register entries for LR Nos. 1160/286, 287 and 288 as of 29th June, 2016. The motion invoked sections 5, 4 and 31(j) & (k) of the Contempt of Court Act, 2016, which the Court noted had been declared unconstitutional in its entirety by the High Court in Kenya Human Rights Commission v Attorney General, rendering the application premised on non-existent law; nonetheless, because the applicant was not a lawyer, the Court considered the motion on its merits under the pre-Act English law restated in Christine Wangari Gachege. Applying the four elements for contempt - a clear and unambiguous order, knowledge, breach, and deliberate conduct - the Court found that the judgment imposed no obligation on the contemnors to do or refrain from doing anything; the duty to restore the register fell on the Registrar, who complied. There was no eviction order the contemnors had disobeyed, and Hadija Butt was not a party to the underlying suit. The Court held the application was an eviction suit disguised as contempt proceedings, with an eviction suit already pending in the Environment and Land Court. The notice of motion was dismissed with costs to the contemnors.

Key legal issues

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01

Whether the contemnors were in contempt of the Court of Appeal judgment of 26th April, 2018

Holding

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.

Reasoning

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.

p. 5
02

The applicable law of contempt given the unconstitutionality of the Contempt of Court Act, 2016

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated 30th December, 2020
  2. 2.Costs of the application awarded to the contemnors

Authorities

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Legislation

  • Contempt of Court Actsections 5, 4 and 31(j) & (k)
  • Judicature Actsection 5(1)
  • England Civil Procedure Rulesrule 81(4)
  • Law of Succession Act

Cases cited (6)

  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Kristen Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No. 364 of 2005
  • Refrigerator & Kitchen Utensils Ltd. v Gulabchand Popatlal Shah & Others
    Civil Application No. Nai. 39 of 1990
  • Central Bank of Kenya & another v Ratilal Automobiles Limited & Others
    Civil Application No. Nai. 247 of 2006
  • Wildlife Lodges Ltd v County Council of Narok and another
    [2005] 2 EA 344
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.