Amon Kinyua & 18 others v Ndathi Mugunda Company Limited [2016] KEELC 230 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 11th respondent was in contempt of the orders of 25th March, 2008
Contempt against the 11th respondent not established
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.
Whether the 18th respondent was in contempt
Contempt established against the 18th respondent
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.
Admissibility of the audio-visual recording relied on by the applicant
Inadmissible for non-compliance with Section 106B of the Evidence Act
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.
Leave to amend pleadings
Leave granted
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.
Legal principles established
#- 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
#- 1.The application allowed in terms of prayers 3 and 8 only
- 2.The 18th respondent declared to be in contempt of the court order for maintenance of status quo
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.