Judith Nekesa Waswa v Michael Odiembo & 2 others [2018] KEELC 4833 (KLR)
The bottom line
#A Kenyan court refused to jail defendants for contempt because the injunction only covered one specific property and one defendant was never served with the order.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 3rd Defendants were in contempt of the order of 25th October, 2016
The contempt application failed because the injunction order expressly covered only the 1st suit property (I.R 154327), while the advertising complained of related to the 2nd suit property (I.R 154326), and the 3rd Defendant was neither a party when the order was made nor served with it
The Plaintiff's injunction application was expressly directed at Land Title Number I.R 154327, whose certificate of title was annexed to her supporting affidavit. The original parcel was only introduced via the further amended plaint of 15th March 2017. The Plaintiff admitted the activities complained of were on the other portion. The court could not extend the order by implication; nor could contempt lie against the 3rd Defendant who was not a party and was not shown to have been served or aware of the order. Given the quasi-criminal standard of proof, the application had to fail.
Legal principles established
#- Contempt of court proceedings are quasi-criminal in nature and the standard of proof is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
- A court order cannot be extended by implication to cover property not expressly covered by the order; a party seeking protection over additional property must apply for fresh orders
- Contempt cannot be founded against a person who was not a party when the order was made and against whom the order was not directed or served
Court orders
#- 1.The Plaintiff's Notice of Motion dated 15th March, 2017 is dismissed
- 2.Costs of the application awarded to the 1st and 3rd Defendants
- Jurisdiction invoked
- Inherent civil jurisdiction of the High Court over contempt of court orders issued in a suit before it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judith Nekesa Waswa v Michael Odiembo & 2 others [2018] KEELC 4833 (KLR)", Case Analysis (2018). Notice of Motion dated 15th March, 2017 (arising from suit filed 19th July, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4833/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.