Philip Chilumo Mbaru v Dzombo Charles Chai & 4 others [2014] KEELC 112 (KLR)
The bottom line
#A Kenyan family that buried their father in defiance of a court order was found in contempt and ordered to exhume the body at their own cost.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants were in contempt of the injunction order dated 6th June, 2014
The Defendants were in contempt because the body had not been interred at the time of service, and they buried it hurriedly after service in the presence of the Chief.
The process server, accompanied by the Chief and the Chief Inspector of Administration, found the grave cemented but the body not interred. After service on each Defendant, a family representative had the body secretly buried hurriedly. The Defendants' advocate did not cross-examine the process server, and given the official witnesses present, his account could not be a lie. The court therefore found deliberate disobedience.
The appropriate sanction for the contempt
Although the Defendants were liable to be committed to jail under Order 40 Rule 3, the court declined committal and instead allowed them to purge the contempt by exhuming the body at their own cost.
The court considered that the Defendants may have been under pressure from the clan or elders to bury the deceased. Rather than a six-month custodial sentence as sought, it crafted a remedial order: exhumation within seven days, with the Defendants bearing exhumation and morgue costs, enforced by the O.C.S and public health officer.
Legal principles established
#- A party served with a court order who deliberately disobeys it is liable to committal under Order 40 Rule 3 of the Civil Procedure Rules, but the court may permit purging of the contempt.
Court orders
#- 1.The Defendants to exhume the body of their late father, Charles Dzombo, from plot number Chonyi/Galanema/37 within seven (7) days from the date they are served with this order
- 2.The costs of exhuming the body and the morgue charge to be paid by the Defendants
- 3.The O.C.S in charge of Chasimba Division and the public health officer in charge of the said Division to enforce this order
- 4.The Defendants to pay the costs of this application
- Jurisdiction invoked
- Order 40 Rule 3 of the Civil Procedure Rules (contempt/commission for disobedience of injunction order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Chilumo Mbaru v Dzombo Charles Chai & 4 others [2014] KEELC 112 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/112/eng@2014-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.