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ELCDismissedNotice of Motion dated 13/10/2017 (suit filed 18/9/2013)· [2018] KEELC 3936 (KLR)

KIMANJA KAMAU (Suing as the personal representative of the representative of the estate of GIDEON GITUNDU KIMERE-deceased v Francis Mwangi Mwaura & another [2018] KEELC 3936 (KLR)

Environment and Land Court
20 March 2018
JKJ G Kemei
3,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to jail defendants for contempt because the court order they allegedly disobeyed had already expired.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Court by Notice of Motion dated 13/10/2017 under Order 40 Rule 3 and related provisions of the Civil Procedure Rules and the Civil Procedure Act, seeking committal of the 1st and 2nd Defendants to civil jail for six months for disobeying status quo orders granted on 23/09/2013 together with a penal notice dated 24/09/2013, and ancillary restraints on further proceedings until the contempt was purged. The Applicant alleged the Defendants were personally served and acknowledged receipt, and thereafter re-entered the suit land and began cultivation and planting, evidenced by photographs. The Defendants filed separate replying affidavits denying contempt, asserting they are registered owners and bona fide purchasers for value of the respective parcels, and contending the application was misconceived and an attempt to delay the main suit; in submissions they argued the orders had expired, the last purported revival being on 24/03/2015 without a defined period, and that an expired order cannot found contempt. The Court set out the statutory framework for contempt, the applicable standard of proof (higher than balance of probabilities but below beyond reasonable doubt) and the four elements an applicant must prove. Reviewing the record, the Court found the interim orders of 18/9/2013 expired on 7/10/2013 when the interpartes hearing was due, were never extended or revived, and nothing on record showed any extension. The first element - a clear and binding subsisting order - therefore failed. The application was dismissed with costs to the Defendants.

Key legal issues

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01

Whether the status quo orders of 18/9/2013 (extracted 23/09/2013) were still subsisting at the time of the alleged contempt

Holding

The orders expired on 7/10/2013 when the interpartes hearing was due and were never extended or revived; the 24/3/2015 proceedings show no subsisting orders

Reasoning

The court traced the file record and found the interim orders of 18/9/2013 were to last pending the interpartes hearing on 7/10/2013. Nothing on record shows any extension. On 24/3/2015 counsel merely requested maintenance of a status quo, but the court made no orders. The record of a court of record speaks for itself, so the applicant's belief in subsisting orders was mistaken.

p. 4
02

Whether contempt can be established absent a valid subsisting order

Holding

No contempt can hold where the underlying order has lapsed, since the first element - a clear, unambiguous and binding order - is not satisfied

Reasoning

Applying the four elements for civil contempt, the applicant must first prove the terms of the order were clear and binding. Since the order had expired, there was no order legally obligating the Defendants, and the failure of the first element meant the inquiry could not proceed to the others. Service and acknowledgment of the orders could not cure their expiry.

p. 4

Legal principles established

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  • To succeed in civil contempt, the applicant must prove the terms of the order were clear and unambiguous, that the respondent had knowledge or proper notice, that the respondent breached the order, and that the conduct was deliberate
  • The standard of proof in contempt is higher than on a balance of probabilities but below the criminal standard of beyond reasonable doubt
  • An expired court order cannot found a finding of contempt; every person has an unqualified obligation to obey a subsisting court order until it is discharged or set aside

Court orders

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  1. 1.The Notice of Motion dated 13/10/2017 is dismissed
  2. 2.Costs of the application are awarded to the Defendants

Authorities

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Legislation

  • Contempt of Court ActSection 4(1), 4(2), Section 5(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) and (e)
  • Civil Procedure RulesOrder 40 Rules 3(1), (2) and 3; Order 51 Rule 1

Cases cited (8)

  • Katsuri Limited vs Kapurchand Depar Shar
    [2016] EKLR
  • Priscilla Wanja Kibui Vs James Kiongo Kibui & Anor
    (2014) EKLR
  • Ochieng Nyamogo & Anor Vs Kenya Posts & Telecommunications Corporation
    (1994) EKLR
  • Econet Wireless Kenya Ltd vs Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
  • Teachers Service Commission V Kenya National Union of Teachers & 2 others
    (2013) EKLR
  • Kenya Tea Growers Association Vs Francis Atwoli & 5 others
    (2012) EKLR SC
  • Clarke & Others Vs Chadburn & Others
    (1985) 1 ALL ER (PC) 211
  • Gatharia K Mutikika Vs Baharini Farm Limited
Jurisdiction invoked
Section 5(b) of the Contempt of Court Act No. 46 of 2016; Section 63(c) of the Civil Procedure Act; Order 40 Rules 3(1), (2) and 3 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "KIMANJA KAMAU (Suing as the personal representative of the representative of the estate of GIDEON GITUNDU KIMERE-deceased v Francis Mwangi Mwaura & another [2018] KEELC 3936 (KLR)", Case Analysis (2018). Notice of Motion dated 13/10/2017 (suit filed 18/9/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3936/eng@2018-03-20

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