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ELCPartially Allowed· [2018] KEELC 1349 (KLR)

Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 1349 (KLR)

not stated in the judgment (delivered at Embu; land matter)
18 October 2018
3,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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An Embu court convicted a landowner of contempt for building despite a court order and ordered the new structures demolished at her own cost.

What this practically means

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Executive summary

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This ruling by Y.M. Angima J, delivered at Embu on 18th October 2018, determines a notice of motion dated 4th October 2018 by the 2nd Defendant seeking the Plaintiff's committal to civil jail for contempt of an ex-parte interim injunction issued on 24th September 2018 and extended on 1st October 2018, restraining the Plaintiff from erecting new structures on Title No. Gaturi/Weru/10399. The 2nd Defendant exhibited photographs showing ongoing construction of two buildings despite the order. The Plaintiff attributed the construction to members of the Voice of the Gospel Church, denied wilful disobedience, and offered to pull down the structures. The court held that, following Shimmers Plaza Ltd v National Bank of Kenya, personal service of the extracted order was unnecessary because the interim orders were extended in the presence of the parties' advocates and the Plaintiff did not claim ignorance of the extension. The terms of the injunction were clear beyond peradventure, and the Plaintiff neither sought clarification nor variation. Although the court noted divergent standards of proof (beyond reasonable doubt in Ochino v Okombo; a middle standard in Wildlife Lodges Ltd v County Council of Narok), it was satisfied beyond reasonable doubt that the contempt was proved, the disobedience being deliberate and blatant, and compounded by the Plaintiff having misled the court that she was only constructing a pit latrine. The Plaintiff was convicted of wilful disobedience; she is to be given an opportunity to offer mitigation before sentence. The court ordered her to demolish the offending structures within a specified period, failing which the 2nd Defendant may cause their demolition under the supervision of the OCS Itabua Police Station at the Plaintiff's cost.

Key legal issues

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01

Whether personal service of the extracted interim order was a precondition to a finding of contempt

Holding

Personal service was not necessary because the Plaintiff, through her advocate, was present when the interim orders were extended and did not contend she was unaware of the extension

Reasoning

The general rule in Ochino v Okombo requires personal service of an order before committal. However, following Shimmers Plaza Ltd v National Bank of Kenya, notice or knowledge of the terms of a prohibitory order suffices. Knowledge is established where the person or agent was present when the order was made, was notified of its terms, or was represented in court by counsel. The interim orders were extended on 1st October 2018 in the presence of both advocates, so the legal requirements on service were met.

p. 3
02

Whether the terms of the interim injunction were clear and unambiguous

Holding

The terms restraining the Plaintiff from constructing any new structures were clear beyond peradventure; the Plaintiff neither sought clarification nor variation

Reasoning

Because contempt proceedings are quasi-criminal and may result in deprivation of liberty, clarity of the order breached is an important safeguard. No ambiguity was alleged. The Plaintiff, instead of seeking clarification, relied on church members' interpretation of an earlier order to justify continued construction. Her willingness to pull down the structures did not excuse the breach, which was deliberate and calculated to defeat the course of justice.

p. 3
03

The standard of proof applicable in contempt proceedings

Holding

The court found the contempt proved beyond reasonable doubt, noting divergent formulations of the standard

Reasoning

In Ochino v Okombo alleged contempt must be proved beyond reasonable doubt, but in Wildlife Lodges Ltd v County Council of Narok the standard was held to be higher than a balance of probabilities but not as high as beyond reasonable doubt, it being sufficient if the court is safely satisfied. On the facts, including the Plaintiff's own admissions and the photographic evidence, the court applied the higher standard and found deliberate, blatant disobedience.

p. 3
04

Whether the Plaintiff could escape liability by attributing the construction to church members

Holding

No; the Plaintiff was in possession and control of the suit property and could not disclaim responsibility for construction done for her benefit

Reasoning

The Plaintiff admitted knowledge of the interim injunction, which was served on her son and brought to the attention of the church workers on site. She was in possession of the portion under construction and the structures were for her benefit. She could not be heard to say she had no control over the persons constructing a house for her benefit, nor rely on necessity or the church members' reading of an earlier order.

p. 2

Legal principles established

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  • A person represented in court by counsel or otherwise aware of the terms of a prohibitory order need not be personally served with the extracted order before contempt can lie
  • A court will only punish contempt where the terms of the injunction breached are clear and unambiguous
  • A contemnor should be deprived of the fruits of the contemptuous act; structures erected in disobedience of an order may be ordered demolished

Court orders

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  1. 1.The Plaintiff is convicted of wilful disobedience of the interim injunction extended with effect from 1st October 2018
  2. 2.Before sentence is meted out, the Plaintiff is to be accorded an opportunity to offer mitigation upon delivery of the ruling
  3. 3.The Plaintiff is ordered to demolish the structures erected in disobedience of the court order within a specified period from the date of the ruling
  4. 4.In default of compliance, the 2nd Defendant shall cause the structures to be demolished under the supervision of the Officer Commanding Station, Itabua Police Station and at the Plaintiff's cost
Jurisdiction invoked
Inherent jurisdiction under section 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; contempt proceedings under sections 4(1)(a), 5, 27(b) and 28(1)(6) of the Contempt of Court Act 2011 and Order 40 Rules 3(1) and 4 of the Civil Procedure Rules

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, "Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 1349 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1349/eng@2018-10-18

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