Kenya National Assurance Co. (2001) Ltd Kencent Holdings v Nelson Marwa Regional Commissioner Coast & 5 others [2017] KEELC 1314 (KLR)
The bottom line
#A Mombasa court fined a former County Commissioner Kshs 250,000 for disobeying a court order, but cleared other officials who were never properly served.
What this practically means
#Executive summary
#Key legal issues
#Elements of civil contempt and standard of proof
Applicant must prove the terms of the order, the respondent's knowledge, and failure to comply; the standard is above balance of probability but not necessarily beyond reasonable doubt
The court adopted the South African authority in Burchell and Mativo J's exposition that because contempt may affect the liberty of the alleged contemnor, deliberate and willful breach must be proved to a heightened standard. The application set out the terms of the order, the persons to whom it was directed, and what was required, satisfying the particularity requirement.
Liability of officials for failure to enforce the order
Contempt proved only against the 2nd Respondent (Evan Achoki, County Commissioner); the 4th Respondent (County Secretary) is not liable as security is not devolved; 3rd Respondent directed the 2nd to implement; order not directed at 1st and 5th Respondents
The court found the 2nd Respondent formed a mindset not to comply and made no attempt at enforcement. The 4th Respondent, who alone filed a replying affidavit, explained he had not been personally served and that policing is not a devolved function under the Fourth Schedule, so he cannot command the police. The 5th Respondent is an amorphous group who may not have been served, and the order was not directed at the 1st Respondent.
Legal principles established
#- To succeed in civil contempt, the applicant must prove the terms of the order, knowledge of the terms by the respondent, and failure to comply; the standard of proof is higher than balance of probability but not beyond reasonable doubt
- An order of the High Court must be obeyed unless and until it is reversed or set aside
Court orders
#- 1.Declaration that former County Commissioner of Mombasa Mr Evan Achoki is in contempt of the Court Order dated 4th March 2014
- 2.Fine of Kshs 250,000 payable within 30 days; in default, his movable and immovable properties to be attached and sold to satisfy the penalty
- 3.Application dismissed as against the 4th Respondent
- 4.Costs of the application ordered in the cause
- Jurisdiction invoked
- Section 63(c) and 3A of the Civil Procedure Act Cap 21, section 5 of the Judicature Act Cap 8, Rule 81 of the Applications and Proceedings in relation to Contempt of Court of England and Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Assurance Co. (2001) Ltd Kencent Holdings v Nelson Marwa Regional Commissioner Coast & 5 others [2017] KEELC 1314 (KLR)", Case Analysis (2017). Application dated 27th April 2016 (E&L Suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1314/eng@2017-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.