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Court of AppealDismissedCivil Application No. E455 of 2023 (application dated 26th September 2023)· [2024] KECA 919 (KLR)

Kigio Group Company Ltd v Kibaara & 8 others (Civil Appeal E193 of 2022) [2024] KECA 919 (KLR)

Court of Appeal
31 July 2024
5,377 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a contempt claim because the losing side never proved the other parties actually knew about the court order they allegedly broke.

What this practically means

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Executive summary

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Kigio Group Company Limited, the registered proprietor of Thika Business Centre, applied to the Court of Appeal citing the nine Respondents for contempt of the Court's order of 25th May 2021 (Musinga (P), Murgor & Kantai, JJ.A.) which stopped the public auction of the suit property scheduled for that day pending delivery of a ruling. The Applicant alleged that the Respondents sold the property at auction, colluded to file HCCOMM No. E140 of 2023 in the High Court, and obtained orders of Mong'are, J. of 4th September 2023 diverting rental income, thereby overreaching the Court of Appeal's orders. It sought committal to civil jail, fines, stay of the High Court proceedings, restitution of rents, freezing of a Sidian Bank account, a criminal investigation complaint, a forensic audit and supervised compliance. The Court restated the law: contempt is quasi-criminal, requiring proof to a standard higher than balance of probabilities but below beyond reasonable doubt, and an applicant must prove the terms of the order, the respondent's knowledge of it, and breach. On the evidence, including the Applicant's own process server's affidavit, the auction was concluded at 12 noon, while the order was served on the advocates by the Deputy Registrar at 2.17 pm; no order bearing a penal notice was shown to have been served on any Respondent. The order of 25th May 2021 was specific to the auction of that date and did not bar the subsequent High Court proceedings. Contempt was not proved to the required standard, and the application was dismissed in its entirety with costs to the Respondents.

Key legal issues

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01

Standard and elements of proof in contempt of court proceedings

Holding

The Applicant must prove the terms of the order, knowledge of the order by the respondent, and breach, to a standard higher than balance of probabilities but below beyond reasonable doubt

Reasoning

The Court surveyed its own precedent in Shimmers Plaza, Christine Wangari Gachege and Michael Sistu Mwaura Kamau, and the Supreme Court's decision in Githiga v Kiru Tea Factory, all confirming the quasi-criminal character of contempt, the high threshold of proof, and the requirement of knowledge or notice of the order. Section 5(1) of the Judicature Act supplies the power to punish for contempt, importing the English Civil Procedure Rules approach.

p. 8
02

Whether the Respondents had knowledge and notice of the 25th May 2021 order at the time of the auction

Holding

They did not: the auction was completed at 12 noon while the order was served on the advocates at 2.17 pm by email, and no penal notice was exhibited as served

Reasoning

The Applicant's own process server's affidavit confirmed the auction began at about 12.00 pm. The Deputy Registrar's email showed service on advocates at 2.17 pm. The Respondents' evidence that the auction concluded before service was uncontested, and the Applicant failed to exhibit any order bearing a penal notice served on any Respondent. Contempt cannot be founded on an order of which the alleged contemnor had no notice.

p. 9
03

Whether participation in HCCOMM No. E140 of 2023 and compliance with the High Court orders therein constituted contempt

Holding

No; the 25th May 2021 order only stopped the auction of that date, and no subsisting order of this Court barred the High Court proceedings or restrained actions in respect of the later orders

Reasoning

The Court found the order of 25th May 2021 was specific to stopping the auction scheduled that day. No order of the Court of Appeal was exhibited restraining the parties from instituting or pursuing HCCOMM No. E140 of 2023 or from complying with the mandatory injunction orders of 4th September 2023, nor was any such order shown to have been served on the Respondents.

p. 10

Legal principles established

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  • To succeed in contempt, an applicant must prove the terms of the order, the respondent's knowledge of the terms, and failure to comply, to a standard higher than balance of probabilities but not beyond reasonable doubt
  • The court must satisfy itself beyond any shadow of a doubt that the alleged contemnor committed the act with full knowledge or notice of the order
  • Contempt proceedings are quasi-criminal and require a higher standard of proof than ordinary civil cases

Court orders

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  1. 1.The application dated 26th September 2023 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal (Organisation and Administration) ActSection 35
  • Judicature ActSection 5(1)
  • English Civil Procedure RulesRules 81.4, 81.5, 81.6, 81.8
  • Contempt of Court ActSection 4

Cases cited (14)

  • Econet Wireless Kenya Ltd v Minister for Information and Communication of Kenya & Another
    [2005] KLR 828
  • Mohamed Ibrahim; Teachers Service Commission v Kenya National Union of Teachers and 2 Others
    [2013] eKLR
  • Stephen Njoroge Gikera & Another vs Econite Mining Company Ltd & 7 others
    [2018] eKLR
  • Shimmers Plaza Ltd v National Bank of Kenya Ltd
    [2015] eKLR
  • Gatharia K. Mutikika vs Baharini Farm Ltd
    [1985] KLR 27
  • Vimalkumar Bhimji Depar Shah & Another v Stephen Jennings & 5 Others
    [2016] eKLR
  • Michael Sistu Mwaura Kamau v Director of Public Prosecution & 4 Others
    [2018] eKLR
  • Githiga & 5 Others v Kiru Tea Factory Company Ltd
    [2023] KESC 41 (KLR)
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    Nairobi Civil Application No. 233 of 2007 [2014] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    [2018] eKLR
  • Republic v Ahmad Abolfathi Mohammed & another
    SC Criminal Application No 2 of 2018 [2018] eKLR
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229, 234
  • Jihan Freighters Ltd v Hardware & General Stores Ltd
  • A.B. & Another v R. B.
    [2016] eKLR
Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act; section 35 of the Court of Appeal (Organisation and Administration) Act; section 5(1) of the Judicature Act (contempt jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kigio Group Company Ltd v Kibaara & 8 others (Civil Appeal E193 of 2022) [2024] KECA 919 (KLR)", Case Analysis (2024). Civil Application No. E455 of 2023 (application dated 26th September 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/919/eng@2024-07-31

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