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ELCDismissedNot stated in judgment· [2014] KEELC 210 (KLR)

Reuben Mulwa Kioko v Japhet Kahindi Noti Shutu (alias) Njanja [2014] KEELC 210 (KLR)

Environment and Land Court (High Court, Malindi)
26 September 2014
OAO. A. Angote
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail people for disobeying a court order because affidavit evidence alone, without cross-examination, could not prove who actually did it.

What this practically means

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Executive summary

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The Plaintiff, who had obtained an ex parte injunction on 24th February 2014 (extended on 6th March 2014) restraining the Defendant from interfering with plot number 10866 Malindi, filed an application dated 3rd April 2014 seeking a warrant of arrest and committal to civil jail of the Defendant's sons (Edward Fondo Noti and Eric Tumaini Noti), one Japhet Noti Charo and Justance Karisa, and/or a fine, for allegedly demolishing a building and petrol-bombing the suit property, including the Plaintiff's bar, during the subsistence of the court orders. The Plaintiff deposed that his watchman identified the attackers, valued the destruction at approximately Kshs.4 million, and alleged the Defendant was behind the acts. The Defendant denied disobedience, deponing that he was in Nairobi between 17th and 30th March 2014 and annexing receipts in support; the Plaintiff swore a further affidavit alleging the receipts were forgeries or that the Defendant acted through agents. The court held that although the acts were said to have occurred during the subsistence of the order, it would be speculating to commit the named persons to civil jail on affidavit evidence alone. It found that cross-examination of the alleged contemnors, including the Defendant, was necessary to establish who committed what and when, and clarified that its observations would not affect the pending criminal case in the lower court. The court disallowed the application dated 3rd April 2014 and ordered each party to bear his own costs.

Key legal issues

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01

Whether contempt of a subsisting court order was proved against the Defendant and the named individuals

Holding

The court declined to find contempt proved; committing the named persons to civil jail on affidavits alone would amount to speculation

Reasoning

The alleged arson occurred during the subsistence of the injunction, but the Defendant denied involvement and produced receipts indicating he was in Nairobi. The Plaintiff alleged the receipts were forgeries or that the Defendant acted through agents. The court held that affidavits were insufficient to resolve this dispute and that cross-examination of the deponents was required before a committal could be made.

p. 3
02

Relationship between the contempt application and the pending criminal case

Holding

The court's observations do not prejudice the pending criminal case in the lower court, where guilt or innocence should be determined

Reasoning

The court clarified that its refusal to commit the alleged contemnors on the civil application did not imply that the individuals did not commit the acts complained of, nor did it indicate how the pending criminal case should be decided; if the lower court finds sufficient evidence, the offenders should be punished in accordance with the law.

p. 3

Legal principles established

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  • A finding of contempt and committal to civil jail cannot rest on speculation from affidavits; the alleged contemnors must be cross-examined to ascertain where they were on the relevant dates

Court orders

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  1. 1.The Application dated 3rd April 2014 is disallowed
  2. 2.Each party shall bear his own costs
Jurisdiction invoked
Inherent jurisdiction of the High Court to punish contempt of court orders (invoked by way of application for committal; no specific provision cited)

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, "Reuben Mulwa Kioko v Japhet Kahindi Noti Shutu (alias) Njanja [2014] KEELC 210 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/210/eng@2014-09-26

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