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ELCPartially AllowedNotice of motion dated 20th November, 2015 (suit not otherwise numbered in judgment)· [2016] KEELC 230 (KLR)

Amon Kinyua & 18 others v Ndathi Mugunda Company Limited [2016] KEELC 230 (KLR)

High Court of Kenya at Nyeri
9 November 2016
2,286 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 found one man in contempt for selling a disputed plot despite a court order, but let another off because the evidence failed.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 20th November 2015 by the defendant, Charles Kinyua Karoki, seeking to punish the 11th and 18th plaintiffs (Wilson Ndiritu Ngiri and Charles Njure Murage) for contempt of High Court orders of 19th March 2008 (and earlier orders of 27th July 2007 and 25th March 2008) maintaining status quo over 21 suit plots and restraining the 1st and 11th plaintiffs from interfering with the administration of the defendant company or purporting to be its directors. The applicant alleged the respondents held a meeting disguised as members of Chaka Plot Owners Association and sold Chaka Plot No. 49 to a third party in breach of the orders. The 11th respondent denied the allegations, contending the meeting was of a distinct entity, the Chaka Plot Owners Self Help Group, and that contempt was not proved. The court framed two issues: whether contempt was established and what orders to issue. It found the audio-visual recording inadmissible for want of a certificate under Section 106B of the Evidence Act, and held the applicant failed to discharge the heavy burden of proof against the 11th respondent. However, contempt was established against the 18th respondent, who entered into a sale agreement over plot No. 49 in breach of the status quo order. The application was allowed in terms of prayers 3 and 8 only; the 18th respondent was declared in contempt and ordered to show cause within 14 days why he should not be punished. Leave to amend the defence and counterclaim to join the purchaser was granted. No costs order was recorded.

Key legal issues

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01

Whether the 11th respondent was in contempt of the orders of 25th March, 2008

Holding

Contempt against the 11th respondent not established

Reasoning

The applicant failed to adduce evidence proving to the required standard that the 11th respondent attended and addressed the meeting as an official of the company or signed the receipts for the sale of plot No. 49. The contention that the meeting was of the Chaka Plot Owners Self Help Group, a different entity, was not controverted. The audio-visual recording was inadmissible for want of a Section 106B certificate.

p. 5
02

Whether the 18th respondent was in contempt

Holding

Contempt established against the 18th respondent

Reasoning

Evidence on record showed the 18th respondent entered into an agreement for sale of plot No. 49, one of the 21 suit plots subject to the status quo order, with Samuel Muthua Karimi. In the absence of any explanation to the contrary, this was contemptuous of the maintenance of status quo order. He was declared in contempt and ordered to show cause why he should not be punished.

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Admissibility of the audio-visual recording relied on by the applicant

Holding

Inadmissible for non-compliance with Section 106B of the Evidence Act

Reasoning

The electronic recording of the alleged meeting required certificates confirming the gadget used was in good working condition when the evidence was collected. None were generated, so the evidence could not discharge the burden of proof on contempt.

p. 4
04

Leave to amend pleadings

Holding

Leave granted

Reasoning

In view of the changed circumstances, including the sale of plot No. 49 to a third party, the court was persuaded the defendant deserved leave to amend its pleadings to bring on board the purchaser of plot No. 49.

p. 6

Legal principles established

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  • Contempt must be proved to a high standard of proof; the applicant bears a heavy burden of demonstrating wilful disobedience
  • Electronic evidence is inadmissible unless accompanied by the certificate required under Section 106B of the Evidence Act

Court orders

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  1. 1.The application allowed in terms of prayers 3 and 8 only
  2. 2.The 18th respondent declared to be in contempt of the court order for maintenance of status quo
  3. 3.The 18th respondent ordered to, within 14 days of delivery of the ruling, show cause why he should not be punished for disobedience of the orders
  4. 4.The defendant granted leave to amend its pleadings to capture the changed circumstances of the case
Jurisdiction invoked
Inherent contempt jurisdiction of the High Court over disobedience of orders issued by the High Court on 19th March, 2008

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, "Amon Kinyua & 18 others v Ndathi Mugunda Company Limited [2016] KEELC 230 (KLR)", Case Analysis (2016). Notice of motion dated 20th November, 2015 (suit not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/230/eng@2016-11-09

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