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ELCDismissedNotice of Motion dated 28th September 2015 (Mombasa High Court, Civil Suit re PLOT NO. 224/MN/II MTOPANGA)· [2017] KEELC 684 (KLR)

Abdalla Mgute & 161 others v Mohsin Bin Saleh Sherman & 6 others [2017] KEELC 684 (KLR)

High Court of Kenya
7 December 2017
CYC. Yano
1,444 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by Notice of Motion dated 28th September 2015, later amended, seeking committal of three Contemnors - Moses Mwakio, Mohamed Ali Tsumo and Clement Gitahi Wanjohi - to six months' imprisonment, attachment of their properties, temporary and mandatory injunctions relating to Plot No. 224/MN/II Mtopanga, and police assistance in enforcement, all premised on alleged disobedience of an injunction issued on 30th March 2011 by J. B. Ojwang J restraining the Plaintiffs from taking possession of the suit property. The 1st and 2nd Contemnors opposed, describing the application as frivolous and an abuse of process. The court, C. Yano J, restated that contempt includes willful disobedience of court orders and that the standard of proof is higher than balance of probabilities but short of beyond reasonable doubt. It found the injunction order was directed at the Plaintiffs, among whom the Contemnors are not listed, raising doubt as to who the alleged contemnors were. Service allegations were too general, no specific dates of trespass were pleaded, and the Applicants did not distinguish structures existing before the order from those allegedly erected after it, particularly given evidence of invasion by several other people. Contempt, being criminal in character and capable of costing a party his liberty, required satisfaction beyond any shadow of doubt, which was not achieved. The application was dismissed with each party bearing their own costs, dated and delivered at Mombasa on 7th December 2017.

Key legal issues

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01

Whether contempt of the order of 30th March 2011 was proved against the Contemnors

Holding

Contempt was not proved; the application was dismissed

Reasoning

The court found the injunction order of 30th March 2011 was directed at the Plaintiffs, whose names do not include the Contemnors. Service allegations were general and unspecific, no specific dates of breach were given, and the Applicants failed to distinguish pre-existing structures from those erected after the order. Contempt being criminal in character and punishable by loss of liberty, proof must leave no shadow of doubt; that threshold was not met.

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02

Standard of proof in contempt proceedings

Holding

Higher than balance of probabilities but not exactly beyond reasonable doubt

Reasoning

The court applied the settled standard under the Contempt of Court Act, 2016, which defines contempt to include willful disobedience of any judgment, decree, direction, order or other process of a court, and reiterated the intermediate standard of proof applicable to such applications.

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Legal principles established

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  • The standard of proof in contempt is higher than balance of probabilities but not beyond reasonable doubt
  • In contempt cases the breach must be precisely defined and the order couched in clear and unambiguous terms

Court orders

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  1. 1.The Notice of Motion dated 28th September 2015 (as amended) is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4, 9, 10
  • Contempt of Court Act2016
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3, 4, 9 and 10 of the Civil Procedure Rules; Contempt of Court Act, 2016

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, "Abdalla Mgute & 161 others v Mohsin Bin Saleh Sherman & 6 others [2017] KEELC 684 (KLR)", Case Analysis (2017). Notice of Motion dated 28th September 2015 (Mombasa High Court, Civil Suit re PLOT NO. 224/MN/II MTOPANGA). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/684/eng@2017-12-07

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