Mary Wamaitha Kaittany v Njeri Kariuki [2019] KEELC 68 (KLR)
The bottom line
#A Kenyan High Court fined an advocate KShs 200,000 for withholding property title documents, confirming that excuses do not justify ignoring court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent wilfully disobeyed the order of 7th February 2019 to deliver all deeds and title documents relating to LR Nos 12422/207, 12422/343 and 12422/344
The respondent was guilty of contempt; the mother titles for LR No. 12422/318 and LR No. 12422/207 were documents relating to the suit properties and her refusal to release them, on the excuse that they might get lost or that she held them in custody for a third party, was unjustified
The order of 7th February 2019 required delivery of all deeds, title documents and papers relating to the three properties. The court found the mother titles were documents relating to those properties. The respondent admitted retaining the mother titles, citing professional duty and fear of loss, which the court found to be an excuse. She gave no reasonable explanation for non-compliance despite service of the order on 8th February 2019 and partial release of other documents.
The standard of proof applicable to contempt of court proceedings
The applicable standard is higher than balance of probabilities, almost but not exactly beyond reasonable doubt; the court was satisfied to that standard that the respondent knowingly disobeyed the order
Relying on Mutitika vs Baharini Farm Ltd and Justus Kariuki Mate & Another vs Martin Nyaga Wambora, the court adopted the quasi-criminal standard for contempt, requiring satisfaction beyond any shadow of doubt that the contemnor acted with knowledge or notice of the order. Having been served with the order and having admitted non-release of the mother titles, the respondent knowingly disobeyed it.
The appropriate sanction for the contempt found
A fine of Kshs. 200,000 in default 30 days imprisonment, suspended for 30 days to allow the respondent to purge the contempt by releasing the mother titles
The court, guided by Article 159 of the Constitution which enjoins it to administer justice without undue regard to procedural technicalities, opted for a sanction that both upholds the authority and dignity of the court and gives the respondent an opportunity to comply by releasing the mother titles to enable registration; failing which the suspended sentence takes effect.
Legal principles established
#- There is a plain and unqualified obligation to obey a court order of competent jurisdiction unless and until it is discharged, even where the person affected believes the order to be irregular or void
- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- The court must be satisfied beyond any shadow of doubt that the alleged contemnor committed the act with full knowledge or notice of the court order, given the possible deprivation of liberty
Court orders
#- 1.The respondent is found guilty of contempt for wilfully disobeying the court order issued on 7th February 2019
- 2.The respondent is fined Kshs. 200,000 in default thirty (3) days imprisonment
- 3.The sentence is suspended for thirty (30) days to give the respondent an opportunity to release the mother titles for LR No. 12422/318 and LR No. 12422/207 to enable the applicant to undertake registration, failing which the sentence shall take effect
- 4.The costs of the application to be borne by the respondent
- Jurisdiction invoked
- Sections 3 and 5 of the Judicature Act (Cap 8); Sections 1A, 1B, 3A and 63(a),(b),(c) of the Civil Procedure Act (Cap 21); Order 51 rule 1 of the Civil Procedure Rules; Article 159 of the Constitution (guiding the opportunity to purge contempt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wamaitha Kaittany v Njeri Kariuki [2019] KEELC 68 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 19th March 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/68/eng@2019-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.