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ELCDismissedNot stated in the judgment (Notice of Motion dated 17th January 2017)· [2017] KEELC 61 (KLR)
Mohamed Swaleh Karama Hantosh v Khalid Swaleh Karama & another [2017] KEELC 61 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The plaintiff/applicant moved the court by Notice of Motion dated 17th January 2017 seeking, among five prayers, an order that the OCS Central Police Station stop the 1st defendant from entering plot MOMBASA/BLOCK XVII/1323, that the 1st defendant be cited for contempt of the injunction order issued on 15th December 2016 and served on him on 16th December 2016, and that he be committed to civil jail for six months. The application was brought under Order 40 Rule 3 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The applicant deposed that despite changing the locks, the 1st defendant cut the locks, entered the premises at night and continued to trespass in disobedience of the order, reporting the matter to Central Police Station. The 1st defendant, in a replying affidavit, admitted service but deposed that he stopped further construction upon receipt, denied disobedience, and accused the applicant of malice and of seeking to delay the main suit. The court identified a single issue: whether the respondent disobeyed the order and was guilty of contempt. Applying the standard in Mutitika v Baharin Farm Ltd - higher than balance of probabilities but below beyond reasonable doubt - the court held the allegations too general: no specific dates of trespass were given, no photographic evidence of broken locks was produced, and the night-time acts could not be attributed to the respondent. The court also observed the construction complained of predated the order. The application was dismissed with costs to the 1st defendant.
Key legal issues
#01
Whether the applicant proved contempt of the injunction order to the required standard
Holding
The application for contempt was dismissed; the applicant failed to discharge the burden of proving that the 1st defendant disobeyed the order
Reasoning
The court found the allegations too general: no specific dates of trespass were given, no photographic evidence of broken locks was produced, and the acts were said to have occurred at night so the applicant could not establish that the respondent was the perpetrator. The construction complained of had in fact begun before the order of 15th December 2016, and the respondent admitted service and stopped further construction.
p. 3
Legal principles established
#- The standard of proof in contempt of court proceedings is higher than proof on a balance of probabilities but not exactly beyond reasonable doubt
Court orders
#- 1.The Notice of Motion dated 17th January 2017 is dismissed with costs to the 1st defendant
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules (application for contempt of an interim injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Swaleh Karama Hantosh v Khalid Swaleh Karama & another [2017] KEELC 61 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 17th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/61/eng@2017-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.