Kenneth Gathura Kimani v Grace Njeri Macharia [2018] KEELC 3044 (KLR)
The bottom line
#A Murang'a court found a widow guilty of contempt for burying her husband on land covered by a court order, but postponed both sentencing and exhumation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid Court order served on the Respondent
The order of 28/9/2017 was clear, unambiguous and binding, and the Respondent acknowledged service and had knowledge of it before the burial began.
The Court perused the file and reproduced the order of 28/9/2017 restraining the defendant, her agents and any persons acting on her instructions from burying the deceased on the suit land. The Respondent admitted receipt of the order. Neither the clarity of the order nor her knowledge of it was disputed, so the Court concluded there was a valid order.
Whether absence of a penal note and of personal service vitiated the contempt proceedings
Proof of knowledge of the order dispenses with strict personal service and with the requirement of a penal notice.
Relying on Shimmers Plaza Ltd v NBK and Basil Criticos v Attorney General, the Court held that the law has changed and knowledge supersedes personal service; where a party clearly acts with knowledge of a Court order, the strict requirement of personal service is unnecessary. Since the Respondent accepted service in her sitting room, the absence of a penal notice did not assist her.
Whether the Respondent wilfully disobeyed the order despite claiming she was unconscious and that unnamed clan members conducted the burial
The Respondent was conscious when served, had a duty to obey and to alert those present that the burial had been stopped, and her claim of unconsciousness was disbelieved; she was found guilty of contempt.
The Court reconstructed the day's events: the Respondent accepted service at about 11.30 am while seated in her sitting room, showing she was conscious. No admission and discharge documents supported the claim that her son was hospitalized. As the deceased's wife and the target of the order, she could not blame unnamed clansmen and relatives, who were equally bound by the order's terms through her. The Court found she knowingly buried the deceased in breach of the order.
Whether the Court should order exhumation of the remains at this stage
Exhumation was deferred until the hearing and determination of the pending suit on ownership of the suit land.
The Court had power to order exhumation, but since ELC No. 277 of 2017 on ownership of Loc 8/Gatuya/419 is pending, ordering exhumation then would be premature. The body's presence gives the Respondent no advantage and does not prejudice the Plaintiff's claim; if exhumed wrongly, the body would be disturbed unnecessarily. The balance of convenience favoured leaving the body where it is, to be dealt with in the final orders of the main suit.
Legal principles established
#- Civil contempt means wilful disobedience of any judgment, decree, direction, order or other process of a Court, or wilful breach of an undertaking given to a Court
- Knowledge of a Court order suffices to prove service for contempt purposes and dispenses with personal service and the requirement of a penal notice
- A party against whom a Court order is made has an unqualified obligation to obey it until it is discharged or set aside; defiance is not an option
- The standard of proof in contempt is higher than in civil cases but lower than the criminal standard of beyond reasonable doubt
- To succeed in civil contempt, the Applicant must prove four elements: clear and unambiguous order binding on the defendant; knowledge or notice of its terms; breach of its terms; and deliberate conduct
Court orders
#- 1.That Grace Njeri Macharia is guilty of contempt of Court orders issued on 28/9/2017 and is liable for punishment
- 2.That Grace Njeri Macharia to appear before the Court for mitigation and sentencing on a date to be fixed, to address the Court in mitigation if she wishes before the sentence is meted out
- 3.The costs of the application are awarded to the Plaintiff
- Jurisdiction invoked
- Inherent and statutory jurisdiction under Section 63(c) of the Civil Procedure Act, Order 40 Rule 3(1) of the Civil Procedure Rules and sections 3, 4(1)(a), 5(b) and 28(1) of the Contempt of Court Act No. 46 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Gathura Kimani v Grace Njeri Macharia [2018] KEELC 3044 (KLR)", Case Analysis (2018). ELC suit at Murang'a (suit number not stated in the judgment; application dated 13/10/2017 within the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3044/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.