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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 24th June 2011)

Faza Holdings Limited T/A Down Town Hotel v John Kagonye Ngururi & another [2014] KEELC 434 (KLR)

High Court of Kenya
27 March 2014
6,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The High Court found two defendants in contempt for auctioning goods despite a court order, ruling you cannot get damages in contempt proceedings.

What this practically means

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Executive summary

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The Plaintiff, Faza Holdings Limited trading as Downtown Hotel, moved the High Court by Notice of Motion dated 24th June 2011 seeking committal of the 1st Defendant, John Kagonye Ngururi, and the 2nd Defendant, Kang'eri Wanjohi trading as Kindest Auctioneers, for contempt of a mandatory injunction issued by Mbogholi J on 26th January 2010 requiring return of distrained goods, together with Kshs.9,161,600/= as replacement and restoration value, interest, and attachment of the Defendants' property in default. The Defendants denied personal service, contended the ex parte order had lapsed, and asserted the June 2011 auction was sanctioned by orders in HCCC No. 153 of 2001 (Mohamed Abubakar v Ecobank Kenya Ltd & John K. Ngururi), while disowning the November 2011 Pyramid Auctioneers distress. The court framed three issues: personal service, culpability, and remedies. It found personal service proved on the 2nd Defendant and dispensed with service on the 1st Defendant, who had sworn an affidavit demonstrating awareness of the order. Applying the higher-than-civil standard of proof in contempt, the court held both Defendants in contempt for the 22nd June 2011 auction, the lapsed-order and HCCC 153 of 2001 arguments being res judicata, and held the 1st Defendant alone culpable for the continuing contempt through the 26th November 2011 Pyramid Auctioneers auction, which he had instructed and indemnified. The court held damages unavailable in contempt proceedings, the monetary claim being special damages for trial. It ordered summons to issue requiring the Defendants to show cause on 8th April 2014 why they should not be committed, directed personal service of the orders within five days, fixed a mention for directions, and awarded the costs of the application to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was personal service of the orders given by the court on 26th January 2010 on the Defendants
  2. 2.If so, whether the alleged contemnors are culpable for contempt of court
  3. 3.If the alleged contemnors are found culpable, whether the Plaintiff can be granted the remedies sought

Key legal issues

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01

Personal service of the order of 26th January 2010

Holding

Personal service was proved on the 2nd Defendant; service on the 1st Defendant was dispensed with because he swore an affidavit on 2nd February 2010 showing he was aware of the ex parte orders

Reasoning

The process server's affidavit proved service on the 2nd Defendant, who neither signed nor challenged it by cross-examination despite being at liberty to do so. As to the 1st Defendant, the court found no evidence of personal service but found his affidavit of 2nd February 2010, sworn to oppose the ex parte orders, demonstrated awareness. The court invoked Rule 81.1(2) of the English Civil Procedure Rules permitting dispensation of service where just, and authorities holding awareness sufficient even without personal service.

p. 7
02

Culpability for contempt

Holding

Both Defendants were culpable of contempt for the 22nd June 2011 auction; only the 1st Defendant was culpable of the continuing contempt by the 26th November 2011 Pyramid Auctioneers auction

Reasoning

The order of 26th January 2010 was a mandatory injunction that had not lapsed, as held by Okwengu J in unappealed rulings which were res judicata on the point; the HCCC No. 153 of 2001 orders did not bind the Plaintiff, a distinct party. Both Defendants nonetheless auctioned the Plaintiff's goods. The 2nd Defendant was not involved in the Pyramid Auctioneers distress, but the 1st Defendant was shown to have instructed and indemnified the auctioneer.

p. 8
03

Whether the remedies sought could be granted

Holding

Committal could proceed by way of summons to show cause; the monetary claim for replacement and restoration value could not be granted in contempt proceedings

Reasoning

The principal contempt sanctions are imprisonment, fine and sequestration; seizure is coercive and attached property remains with the court. Damages are unavailable in contempt, the jurisdiction protecting the administration of justice rather than individuals. The claim of Kshs.9,161,600/= is special damages requiring pleading and proof at trial.

p. 9

Legal principles established

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  • A court order, even if allegedly irregularly or wrongly obtained, must be obeyed unless stayed or set aside
  • The threshold of proof in contempt of court is higher than in normal civil cases, requiring evidence leaving no doubt as to culpability
  • Personal service of the order and penal notice is required before committal for contempt, but may be dispensed with where personal awareness of the order is demonstrated
  • Damages are unavailable as a remedy in contempt of court because the jurisdiction concerns a wrong against the administration of justice, not against an individual

Court orders

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  1. 1.Summons to issue forthwith against John Kagonye Ngururi and Kang'eri Wanjohi trading as Kindest Auctioneers to personally appear in court on 8th April 2014 at 9 am to show cause why they should not be committed or otherwise penalized for contempt of court, with the Plaintiff to follow up on issuance and service
  2. 2.The Plaintiff to personally serve the 1st and 2nd Defendants and their Advocate with the orders granted within 5 days of the date of the ruling
  3. 3.Mention on 8th April 2014 at 9 am for further directions and orders
  4. 4.The Defendants to meet the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 5(1) of the Judicature Act and Order 40 Rule 3 of the Civil Procedure Rules (contempt jurisdiction)

Relief refused

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Joint and several liability of the Defendants for Kshs.9,161,600/= replacement and restoration value with interest

Damages are unavailable as a remedy in contempt; the claim is for special damages to be pleaded and proved at trial

p. 9

Immediate committal to detention of the Defendants

The court directed that summons issue for the Defendants to show cause rather than committing them outright

p. 9

Attachment and sale of the Defendants' property in default of payment

Seizure of a contemnor's goods is coercive only and the attached property remains in the hands of the court, not given to any party

p. 9

Costs

The Defendants shall meet the costs of this application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

1. That summons do forthwith issue against John Kagonye Ngururi and Kang’eri Wanjohi trading as Kindest Auctioneers, the 1st and 2nd Defendants herein, to personally appear in court on 8th April 2014 at 9. am to show cause why they should not be committed or otherwise penalized for contempt of court.
p. 9Final orders - committal process
4. The Defendants shall meet the costs of this application.
p. 9Costs
it is trite law that a court order, even if alleged to have been irregularly or wrongly obtained must be obeyed until or unless it is stayed or set aside
p. 8Obedience to court orders
the threshold of proof required in contempt of Court is higher than that in normal civil cases
p. 7Standard of proof in contempt
The Defendants did not appeal the said ruling, and the issue is therefore res- judicata.
p. 8Res judicata on the lapsed-order argument
The only conclusion that this court can reach in light of the evidence before it is that the 1st Defendant was a participant in, and authorized the proceedings in Joseph D.K. Kimani Pyramid Auctioneers and John Kagonye Ngururi vs Mohamed Abubakar T/A Downtown Hotel
p. 9Continuing contempt by the 1st Defendant

Issues in the judgment

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minor

The judgment internally gives two different dates for the order of injunction of Hon. Justice Mbogholi: the introduction and prayers refer to an order given on 26th January 2010, while the grounds in support of the application refer to 'on 26th January 2011, Msagha Mbogholi J. issued a mandatory order of injunction'

minor

The disposition is described as a 'ruling' in the final paragraphs although the document analyses and determines the Notice of Motion, and the date line contains blank spaces before the day and month

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, "Faza Holdings Limited T/A Down Town Hotel v John Kagonye Ngururi & another [2014] KEELC 434 (KLR)", Case Analysis (2014). Not stated in judgment (Notice of Motion dated 24th June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/434/eng@2014-03-27

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