Kigio Group Company Ltd v Kibaara & 8 others (Civil Appeal E193 of 2022) [2024] KECA 919 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Standard and elements of proof in contempt of court proceedings
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
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.
Whether the Respondents had knowledge and notice of the 25th May 2021 order at the time of the auction
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
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.
Whether participation in HCCOMM No. E140 of 2023 and compliance with the High Court orders therein constituted contempt
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
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.
Legal principles established
#- 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
#- 1.The application dated 26th September 2023 is dismissed with costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chemutai (Suing as the Legal Representative of the Estate of the Late Prisca Chepkong’a) v Chesiyna (Sued as the Legal Representative of the Estate of the Late Chebii Chesiyna Elijah - Deceased) & another (Environment and Land Case E003 of 2023) [2026] KEELC 1117 (KLR)[2026] KEELC 1117 (KLR)25 Feb 2026
Cite this brief
#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.