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ELCDismissedNot stated in judgment· [2019] KEELC 1126 (KLR)

Magi Holdings Limited v Jesus Manifestation Church & another [2019] KEELC 1126 (KLR)

Environment and Land Court
17 October 2019
LKL. Komingoi
1,025 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to jail a man for ignoring a court order because he was never personally served with it.

What this practically means

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Executive summary

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This was a notice of motion dated 6th June 2019 in which the plaintiff, Elizabeth Wanjiku Nguchuga, sought orders of contempt against the 2nd defendant, Prince William Mwangangi. She asked the court to compel him to comply with orders issued on 30th May 2019 (stopping further construction at the site), to cite him for contempt, to commit him to civil jail for six months, to stop church services at the site, and to impose a mandatory penalty, with police enforcement. The application was opposed through a replying affidavit sworn by the 2nd defendant, who contended that the construction was complete before the orders were issued. The court framed three issues: whether the alleged contemnor was served with the orders; whether he was guilty of disobedience; and who should bear costs. On service, the court found the process server had served the defendant's advocates rather than the defendant personally, and held, applying the Wambora authority, that personal service on the contemnor was necessary given the high threshold for committal. On disobedience, the court adopted the standard that contempt must be proved to a level higher than balance of probabilities but below proof beyond reasonable doubt, since contempt is of criminal character and may cost a party his liberty. The applicant failed to discharge this burden, and the application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Service of the contempt application and underlying order

Holding

Service on the contemnor's advocates was not sufficient; personal service on the contemnor was necessary

Reasoning

The process server Samuel Maina Wamugi did not serve the 2nd defendant personally; he served the firm of M/s Lusweti & Nubutula & Co. Advocates. Relying on the Wambora decision, the court found the applicant had to satisfy itself that the contemnor had full knowledge of the order. It was therefore necessary to serve the contemnor personally.

p. 2
02

Whether contempt/disobedience was proved

Holding

No; the applicant failed to discharge her burden

Reasoning

The court applied the settled standard of proof in contempt, higher than balance of probabilities but not beyond reasonable doubt, because contempt is of criminal character and may result in loss of liberty. Evidence of ongoing construction by 16th May and photographs of a complete structure did not prove wilful disobedience after knowledge of the order.

p. 2

Legal principles established

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  • The person alleged to be in contempt must have had full knowledge of the court order before committal, and the threshold of proof is high because it involves deprivation of liberty
  • The standard of proof in contempt is higher than balance of probabilities but lower than proof beyond reasonable doubt

Court orders

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  1. 1.The notice of motion dated 6th June 2019 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure (Amendment No. 2) Rules 2012 No. 2208 (L.8) Senior Courts of England & WalesRules 18, 3

Cases cited (3)

  • Justus Kariuki Mate & Another vs Martin Nyaga Wambora
    Civil Appeal No. 24 of 2014
  • Refrigeration & Kitchen Utensils Ltd vs Gulabchand Popittal Shah & Others
    Civil Appeal No. 39 of 1990
  • Gatharu Mitika & Others vs Baharini Farm Ltd
    Civil Appeal No. 24 of 1995
Jurisdiction invoked
Inherent powers and jurisdiction of the court; Civil Procedure (Amendment No. 2) Rules 2012 (L.8) of the Senior Courts of England & Wales invoked by the applicant

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Magi Holdings Limited v Jesus Manifestation Church & another [2019] KEELC 1126 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1126/eng@2019-10-17

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