Hellen Nekesa Nielsen & another v Dorothy Nelima Wafula & another [2018] KEELC 4199 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether contempt was proved given absence of evidence of service of the order
No contempt was established; the decree showed the Respondent was absent when the order was made and the affidavits of service did not attest to service of the order itself
The court perused the affidavits of service and found the process server never deponed to serving the order of 15th June 2015 on the Respondent. Since contempt proceedings carry criminal sanctions and require a heightened standard of proof, committal could not rest on unproved service. The applicant bore the burden of proving service and obstruction.
Whether the alleged sale of a 30m by 28m portion to a third party amounted to contempt
Not proved; the Applicants did not demonstrate that the sold portion exceeded the Respondent's entitled ¼ share under the decree
The decree entitled the Respondent to ¼ of the plot. The Applicants failed to show whether the portion sold was bigger than, or fell within, her entitled share, so the court could not conclude the sale breached the order.
Whether the alleged obstruction of surveyors established contempt
Not proved; the order did not specify who was to initiate the survey and the Applicants did not state when any obstruction occurred or seek police assistance
The judgment of 15th June 2015 was silent on who was to carry out the survey, only allocating survey costs equally. The Applicants neither pleaded when the gate was allegedly kept closed nor sought a police security order, which was the appropriate remedy for any obstruction.
Legal principles established
#- Willful disobedience of a judgment, decree or order properly constitutes contempt of court under the Contempt of Court Act, 2016
- The standard of proof in contempt proceedings is higher than a balance of probabilities but not beyond reasonable doubt
- Contempt proceedings are criminal in nature and the applicant must prove service of the order and willful disobedience
Court orders
#- 1.The Notice of Motion dated 6th April 2017 seeking committal of the Respondent for contempt is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Contempt of Court Act, 2016 (power to punish for contempt, including willful disobedience of court orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Nekesa Nielsen & another v Dorothy Nelima Wafula & another [2018] KEELC 4199 (KLR)", Case Analysis (2018). Notice of Motion dated 6th April, 2017 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4199/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.