Simon Towett Maritim v Jotham Muiruri Kibaru [2019] KEELC 2062 (KLR)
The bottom line
#A Kenyan landowner failed to prove contempt of a court order because his evidence lacked precise dates, and his claim was dismissed with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent breached the injunction order of 15th May 2018
The applicant failed to prove breach to the requisite standard; the construction may well have taken place before the order was made
The applicant alleged that construction continued during the pendency of the earlier motion and after the order, but gave no precise dates for the alleged contemptuous acts, did not identify who visited the suit land on 5th June and 11th July 2018, and relied on undated photographs that did not show actual construction. The respondent gave evidence, including affidavits of his builders, that the wall and shop were erected between January and April 2018, before the order. Precision as to dates and manner of the contempt is essential.
The applicable standard of proof in contempt proceedings
Higher than balance of probabilities, almost but not exactly beyond reasonable doubt, because liberty is at stake
Relying on the Supreme Court in Republic v Ahmad Abolfathi Mohammed and the Court of Appeal in Mutitika v Baharini Farm Limited, the court reaffirmed that contempt is quasi-criminal, and where committal to jail is sought the standard is higher than the civil standard. The applicant bore this higher burden and did not discharge it.
Legal principles established
#- All persons served with or aware of a court order have a duty to obey it; the only avenue for a dissatisfied party is to seek variation or setting aside
- The standard of proof in contempt proceedings is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt
- Because committal affects the liberty of the contemnor, the power must be exercised with utmost care and only as a last resort, requiring proof of deliberate, wilful flouting of the order
Court orders
#- 1.Notice of Motion dated 18th July 2018 dismissed
- 2.Costs of the application awarded to Jotham Muiruri Kibaru
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over contempt of its own orders in a land dispute (suit land Dundori/Mugwathi Block 2/20)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Towett Maritim v Jotham Muiruri Kibaru [2019] KEELC 2062 (KLR)", Case Analysis (2019). ELC No. 126 of 2012 (Notice of Motion dated 18th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2062/eng@2019-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.