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ELCDismissedEnvironment and Land Court, Kitale Misc. Case No. 8 of 2018· [2018] KEELC 1601 (KLR)

Daniel Odhiambo Okaka v Samuel Udali Mtange & another [2018] KEELC 1601 (KLR)

Environment and Land Court
28 September 2018
AOA. Ombwayo
3,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to punish two men for contempt because the restraining order reached them only after the eviction exercise had already finished.

What this practically means

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Executive summary

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Daniel Odhiambo Okaka t/a Temboli Investment applied by Notice of Motion dated 27.7.2018 seeking to cite Samuel Udali Mtange and James Luvai Chunguli for contempt of a court order issued on 29.6.2018 restraining distress, eviction, locking of premises and interference with tenants' quiet possession of Mutenge Garage pending hearing of Business Tribunal Case No. 01 of 2018. The applicant alleged that despite being served, the respondents instructed Eshikhoni Auctioneers, accompanied by police, to break into the premises, pluck the doors and cart away goods, defying the order. The 2nd respondent explained that the execution was carried out pursuant to a breaking-in order dated 14.6.2018 issued by the Kitale Magistrate's Court in Kitale Civil Case No. 14 of 2018 for rent arrears, and that the Eldoret order was served only after execution had been completed. On viva voce evidence, the process server claimed service at about 11.20 a.m. on a non-certified copy, but the OCS Kitale and the auctioneer's agent testified that the order reached them at about 2.00 p.m., after the exercise had concluded by noon. The court restated the obligation to obey court orders, the quasi-criminal nature of contempt, the shifting burden of proof, and the standard of proof above balance of probabilities but below beyond reasonable doubt. It found no willfulness because the order was likely served after the execution. The application was dismissed with costs, the order applying also to Kitale Misc. Case No. 9 of 2018.

Key legal issues

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01

Whether the respondents willfully disobeyed the court order of 29.6.2018

Holding

The application for contempt was dismissed because the contempt standard was not met; the order was served after the breaking-in exercise pursuant to a valid lower court order had concluded.

Reasoning

The court found that the breaking-in and distress commenced at 8.00 a.m. and concluded around noon pursuant to a Kitale Magistrate's Court breaking order dated 14.6.2018. The process server claimed service around 11.20 a.m., but the OCS testified he received the original order at 2.00 p.m. after execution, and the auctioneer's agent likewise said the order came after execution. Given the timing dispute and the quasi-criminal standard of proof, the applicant failed to establish willful disobedience.

p. 4
02

The applicable burden and standard of proof in contempt proceedings

Holding

The applicant must prove a prima facie case of willful contempt (existence of the order and noncompliance); the burden then shifts to the respondent; the standard is higher than balance of probabilities but below beyond reasonable doubt.

Reasoning

Relying on Hadkinson v Hadkinson, Chuck v Cremer, Gatharia K. Mutikika v Baharini Farm Ltd and Peter K. Yego & Others v Pauline Nekesa Kode, the court set out the quasi-criminal character of contempt, the shifting burden, and the heightened standard of proof, holding that guilt must be proved with strictness consistent with the gravity of the charge.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is quasi-criminal: higher than balance of probabilities but lower than beyond reasonable doubt
  • The applicant bears the initial burden of proving the existence of the order and the respondent's noncompliance, whereupon the burden shifts to the respondent
  • Every person affected by a court order of competent jurisdiction must obey it unless and until it is discharged

Court orders

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  1. 1.The application dated 27.7.2018 seeking to cite the respondents for contempt is dismissed with costs
  2. 2.The dismissal order applies to Environment and Land Court, Kitale Misc. Case No. 9 of 2018

Authorities

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Cases cited (4)

  • Hadkinson v Hadkinson
    (1952) All ER 567
  • Chuck v Cremer
    (1) 1 Coop Temp Cott 342
  • Gatharia K. Mutikika vs Baharini Farm Ltd
  • Peter K. Yego & Others vs Pauline Nekesa Kode

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Odhiambo Okaka v Samuel Udali Mtange & another [2018] KEELC 1601 (KLR)", Case Analysis (2018). Environment and Land Court, Kitale Misc. Case No. 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1601/eng@2018-09-28

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