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ELCDismissed· [2017] KEELC 3409 (KLR)

Athanas Mwaniki Njeru v Jairo Asitiba Atenya [2017] KEELC 3409 (KLR)

High Court of Kenya
16 March 2017
KBK. BOR
803 words in judgment
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The bottom line

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A Kenyan court refused to jail a land developer for ignoring an injunction, ruling that contempt must be proved to a standard higher than the ordinary civil standard.

What this practically means

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Executive summary

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The plaintiff sued the defendant, an elected Member of the County Assembly in Nairobi, seeking general damages for conversion, mesne profits and vacant possession over L.R No. 209/11062 at Imara Daima, Embakasi, alleging trespass and unlawful construction. The court granted interlocutory injunctions in September and November 2014 restraining further dealing with or construction on the suit property. In an application dated 3rd February 2015 the plaintiff sought the defendant's committal for contempt, alleging that construction continued after service of the orders, evidenced by photographs of an almost complete structure. The defendant filed no replying affidavit but his defence, filed three months after the contempt application, denied ordering any works and invited the plaintiff to prove otherwise. Relying on Mutitika –vs- Baharini Farm Ltd. [1985] KLR 227, the court held that contempt must be proved to a standard higher than a balance of probabilities, and that the committal jurisdiction must be exercised with the greatest reluctance where another mode of enforcement is available. Not satisfied that the plaintiff had discharged that burden, and noting that the pending trial could yield eviction and demolition orders if the claim were proved, the court dismissed the contempt application on 16th March 2017 with no orders as to costs.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

Contempt must be proved to a standard higher than a balance of probabilities, which the plaintiff failed to meet

Reasoning

Applying Mutitika –vs- Baharini Farm Ltd., the court held that committal requires proof beyond the civil standard. The defendant denied in his defence that he ordered any works and invited the plaintiff to prove that he did; despite photographs showing a near-complete structure, the plaintiff did not discharge the heightened burden of attributing the construction to the defendant personally.

p. 3
02

Whether committal was the appropriate remedy

Holding

The court declined committal as a last-resort remedy, finding justice achievable through trial

Reasoning

The court emphasized that the contempt jurisdiction should be exercised with the greatest reluctance, and where another mode can bear on the contemnor, committal should not be used. Since the plaintiff's claim for eviction and demolition remained pending, the trial would afford a full remedy if the claim is proved.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on a balance of probabilities
  • The jurisdiction to commit for contempt must be exercised with great reluctance and only where no other mode of enforcement is available

Court orders

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  1. 1.Application dated 3rd February 2015 dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 2, 3, 4 & 5
  • Civil Procedure ActSections 1A and 3A

Cases cited (1)

  • Mutitika –vs- Baharini Farm Ltd.
    [1985] KLR 227
Jurisdiction invoked
Inherent jurisdiction over contempt of court; application brought in pending suit (Order 40 Civil Procedure Rules invoked in the main suit)

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, "Athanas Mwaniki Njeru v Jairo Asitiba Atenya [2017] KEELC 3409 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3409/eng@2017-03-16

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