Hellen Nekesa Nielsen & another v Dorothy Nelima Wafula & another [2018] KEELC 4540 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether willful disobedience of a court order constitutes contempt under the Contempt of Court Act, 2016
Willful disobedience of a judgment, decree, direction, order or other process of a Court constitutes contempt of court under the Act
The court identified the Contempt of Court Act, 2016 as the governing statute, assented to on 23rd December 2016 and commenced on 13th January 2017. Under the Act, contempt includes willful disobedience of any judgment, decree, direction, order or other process of a court. The court noted contempt proceedings are criminal in nature and may impose criminal sanctions.
Whether the Applicants proved service of the order and the alleged contempt to the required standard
The Applicants did not prove service of the order or willful disobedience; the contempt application was dismissed
The affidavits of service did not depone to service of the 15th June 2015 order on the Respondent, who was absent when judgment was delivered. Further, the decree did not specify who was to initiate the survey, the Applicants took no steps to implement the order, and it could not be determined whether the portion sold to a third party exceeded the Respondent's entitled ¼ share. The court found the contempt not proved.
Whether the sale of part of the suit property to a third party constituted disobedience of the distribution order
It could not be established whether the portion sold exceeded the Respondent's entitled share
The decree entitled the Respondent to ¼ of the plot. The agreement for sale showed a portion measuring 30m by 28m of the original parcel, but the Applicants did not demonstrate whether that portion was bigger than the Respondent's entitled share. The court was therefore unable to find that the sale breached the distribution order.
Legal principles established
#- The standard of proof in contempt of court proceedings is higher than a balance of probabilities but not beyond reasonable doubt
- Contempt proceedings are criminal in nature and it is incumbent on the applicant to 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
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 4540 (KLR)", Case Analysis (2018). Notice of Motion dated 6th April, 2017 (arising from Mombasa ELC Case No. 237 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4540/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.