Kitangila Limited v Keziah Mumbi Paul & 5 others [2014] KEELC 613 (KLR)
The bottom line
#The High Court refused to jail two company directors for contempt because the court order they allegedly breached had already lapsed and they genuinely believed the case was over.
What this practically means
#Executive summary
#Key legal issues
#Governing procedure for contempt under section 5(1) of the Judicature Act
The current English Civil Procedure Rules (Part 81, Rule 81.4) apply; no leave is required to commence committal proceedings for breach of a judgment, order or undertaking.
Section 5(1) of the Judicature Act adopts the contempt powers of the High Court of Justice in England 'for the time being'. Following Christine Wangari Gachege, English law changed in October 2012 with Part 81 replacing Order 52 of the Rules of the Supreme Court. Rule 81.4 governs committal for breach of an order and requires only an application notice, unlike Rules 81.11 and 81.17 which require permission. However, nothing turned on the procedure in this case.
Whether the plaintiff had notice of the 15th January 2008 order despite absence of personal service
Knowledge of the order supersedes personal service; the plaintiff's counsel were present when the order was made and the plaintiff was aware of its existence and contents.
The court endorsed the positions of Mabeya J and Lenaola J that knowledge supersedes personal service, supported by Halsbury's Laws. All counsel were present in court when Kubo J made the order; the plaintiff's own counsel extracted and served it on the Defendants. The court accepted the plaintiffs were aware of the order despite lack of personal service, but this alone did not establish contempt.
Whether the plaintiff wilfully disobeyed the status quo order
No — the order did not clearly define the status quo as against the plaintiff, and the plaintiff genuinely believed the suit had been withdrawn when it entered the Machakos consent order and transferred the property.
The status quo order fell short of defining what it restrained, inviting interpretation difficulties. The plaintiff had sanctioned withdrawal of its suit and been advised by its advocates that it was withdrawn; the acts complained of occurred after the consent order in the Machakos suit. Since actual mens rea must be proved in contempt, and the standard of proof is higher than balance of probabilities, wilful disobedience was not established.
Whether the order of 15th January 2008 had lapsed under Order 40 Rule 6
Yes — Order 40 Rule 6, read with transitional Order 54 Rule 2, applied retrospectively to the pending suit; the status quo order lapsed 12 months after the 2010 Rules came into force and no order was in force when the contempt application was brought.
The plaintiff's injunction application was made under the repealed Order XXXIX, whose equivalent is Order 40 of the 2010 Rules. Following Mabeya J in Michael N. Muigai Kenyatta v Barclays Bank, the transitional provisions applied the new rules to pending proceedings. A party benefiting from a pre-2010 injunction was obliged to seek extension within 12 months of the new Rules coming into force; failure meant lapse. Contempt cannot lie for breach of a non-existent order.
Legal principles established
#- Under section 5(1) of the Judicature Act, Kenyan courts must apply the current English procedure for contempt; applications for committal for breach of a judgment, order or undertaking fall under Part 81 Rule 81.4 of the English Civil Procedure Rules, and no leave is required to commence such committal proceedings.
- Knowledge of a court order supersedes the strict requirement of personal service for contempt; what is critical is that the respondent has knowledge of the existence and terms of the order.
- Contempt proceedings are quasi-criminal; the applicant must prove service/notice, that the order is clear and unambiguous, and wilful disobedience — actual mens rea to disobey must be proved.
- By virtue of Order 40 Rule 6 read with the transitional Order 54 Rule 2 of the Civil Procedure Rules, 2010, interlocutory injunctions/status quo orders granted in suits pending before the 2010 Rules lapsed 12 months after the Rules came into force unless extended; a party cannot be punished for contempt of a lapsed order.
Court orders
#- 1.The applications by the 3rd and 6th Defendants dated 31st July 2013 were found devoid of merit and dismissed (prayers for committal of the plaintiff's directors for contempt refused).
- 2.Each party bears their own costs of the application.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act (Cap 8) and the applicable law of England; contempt of court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Christopher Onsembe Manduku v Kennedy Ogora Mongare & 3 others [2017] KEELC 2453 (KLR)[2017] KEELC 2453 (KLR)12 May 2017followed
- S O O & 3 others v Derek Otieno Oluoch [2016] KEELC 210 (KLR)[2016] KEELC 210 (KLR)15 Jul 2016
- HUSEIN ALIBHAI PIRBHAI & another v COMPANY LTD & another[2014] KEHC 8333 (KLR)23 Oct 2014followed
Cite this brief
#Cite this brief
Caselaw, "Kitangila Limited v Keziah Mumbi Paul & 5 others [2014] KEELC 613 (KLR)", Case Analysis (2014). not stated in the judgment (contempt applications dated 31st July 2013 in a pending suit; Machakos HCCC No. 282 of 2012 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/613/eng@2014-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.