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ELCDismissed· [2017] KEELC 2740 (KLR)

Redeemed Gospel Church v Grace Wanjiru [2017] KEELC 2740 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Nairobi)
24 April 2017
KBK. BOR
1,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to jail a landowner for breaking a court order because contempt was not proven to the tougher standard Kenyan courts now require.

What this practically means

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Executive summary

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The Plaintiff, a church organisation, applied under Order 40 Rule 2(3) of the Civil Procedure Rules seeking the committal of the Defendant to civil jail for six months and attachment of her property for alleged breach of orders made on 15th March 2017, in which both parties were restrained from selling, transferring, constructing further or dealing with Plot no. Ruai V 10522 Jet View Estate and Plot no. P 118 (LR 105/5640) pending determination of the land suit, and the Defendant was directed to remove a mound of soil from the property. The Plaintiff alleged that between 15th and 20th March 2017 the Defendant continued construction, installed tenants in a mabati structure, and blocked the Plaintiff's access. The Defendant, in a replying affidavit sworn on 31st March 2017, asserted compliance, stating the Plaintiff's congregation had enjoyed access for worship including a 'kesha' on 25th March 2017, and that after a gun-wielding man harassed her guard she had to move onto the property to protect her materials. The court framed the single question as whether there was deliberate and intentional noncompliance with the 15th March 2017 order. Applying Mutitika vs Baharini Farm Ltd, it held contempt must be proved to a standard higher than balance of probabilities. Finding the Defendant's affidavit uncontroverted and noting the Plaintiff had not denied its own interference with the property, the court concluded the Defendant had complied with the order, declined to commit her, and made no orders as to costs, directing the parties to comply with earlier directions so the suit could be heard expeditiously.

Key legal issues

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01

Whether the Defendant was in contempt of the orders of 15th March 2017

Holding

The court found the Defendant complied with the orders and declined to commit her

Reasoning

The order enjoined both parties. The Defendant removed the mound of soil as directed, and her affidavit evidence of the Plaintiff's congregation's access and vigil was uncontroverted. The Plaintiff did not deny sending agents to interfere with the property, which itself breached the mutual restraint order. Contempt was not proved to the required heightened standard.

p. 3
02

Standard of proof applicable in contempt proceedings

Holding

Contempt must be proved to a standard higher than a balance of probabilities

Reasoning

Relying on Mutitika -vs- Baharini Farm Ltd and Africa Management Communication International Ltd, the court reiterated the elevated standard of proof and the reluctance with which committal jurisdiction is exercised, and applied that standard to the facts before it.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, and the jurisdiction to commit for contempt must be exercised carefully and with reluctance
  • A party alleged to have disobeyed a court order must demonstrate either unawareness of the order or that his actions did not amount to breach

Court orders

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  1. 1.Application dismissed - committal to civil jail refused
  2. 2.Police-assistance prayer not granted (order sought declined)
  3. 3.No orders as to costs
  4. 4.Parties to comply with directions given on 15th March 2017 and ensure the case is heard and determined without further delay

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2(3)
  • Civil Procedure RulesOrder 8 Rules 3 and 8
  • Civil Procedure ActSections 1A, 1B, 2A and 3A

Cases cited (3)

  • Shimmers Plaza Ltd V National Bank of Kenya Ltd
    (2015) eKLR
  • Mutitika –vs- Baharini Farm Ltd.
    [1985] KLR 227
  • Africa Management Communication International Ltd Vs Joseph Mathenge Mugo and another
    (2013) eKLR
Jurisdiction invoked
Order 40 Rule 2(3), Order 8 Rules 3 and 8 of the Civil Procedure Rules and Sections 1A, 1B, 2A and 3A of the Civil Procedure Act (as invoked in the application)

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, "Redeemed Gospel Church v Grace Wanjiru [2017] KEELC 2740 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2740/eng@2017-04-24

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