Arthur Mathitu Nderitu & nother v Settlement Fund Trustees & 2 others; Fredrick Wan’gombe Nderitu & another (Proposed Interested Parties) [2019] KEELC 2346 (KLR)
The bottom line
#A Kenyan court fined land occupants Kshs 100,000 each for ignoring court orders, confirming that even people not named in a case can be punished for contempt.
What this practically means
#Executive summary
#Key legal issues
#Joinder of non-parties in contempt proceedings
Non-parties with knowledge of a court order can be enjoined and punished for contempt since contempt proceedings are quasi-criminal and a non-party against whom an order may be enforced is liable to the same process as a party.
The court applied Halsbury's Laws of England stating that a person not a party against whom a judgment may be enforced is liable to the same process for enforcing obedience as if he were a party. The alleged contemnors were family members of the deceased plaintiff who were aware of the judgment, decree and eviction orders, so their absence from the concluded suit was no bar to their being enjoined for the contempt application.
Functus officio
The court was not functus officio because contempt proceedings are incidental consequences of the final decision, not a merit-based re-engagement with the concluded suit.
Relying on Telkom Kenya v John Ochanda and Raila Odinga v IEBC, the court held that functus officio bars merit-based decisional re-engagement after final judgment but does not bar interlocutory or incidental matters such as execution or contempt proceedings. The joinder of interested parties was for execution of the application, not reopening the determined suit.
Leave to institute contempt proceedings
Leave is no longer required; the application was competent without leave.
Following Christine Wangari Gachege v Elizabeth Wanjiru Evans, which found on the basis of the new English Civil Procedure Rules that no leave is required for committal applications for breach of a court order, the court held that the application was not a non-starter despite no leave having been sought.
Guilt of contempt and standard of proof
The Respondents and interested parties were in contempt, proved beyond a shadow of doubt, the standard being higher than balance of probabilities.
Contempt being quasi-criminal, proof is on a higher standard than balance of probabilities. Considering the affidavits, annexures and the flash disk footage, the court was satisfied that after the eviction of 18th December 2018 the Respondents, incited by the 1st interested party, re-entered the land, destroyed the fence and built new structures in disregard of the judgment, decree and eviction orders.
Applicable contempt law after invalidation of the Contempt of Court Act
The court reverted to the pre-Contempt of Court Act position, invoking Section 29 of the Environment and Land Court Act and the inherent jurisdiction of the court to avoid a lacuna in enforcement.
Since the Contempt of Court Act had been declared invalid in Kenya Human Rights Commission v Attorney General, and the contempt was committed in 2018, the court held it was obliged to revert to the law operating before that Act. Section 29 of the Environment and Land Court Act criminalises disobedience of court orders, and section 3A of the Civil Procedure Act supplies inherent jurisdiction to give meaningful relief.
Legal principles established
#- Non-parties who disobey a court order they know of may be punished for contempt even if they were not party to the suit
- The functus officio doctrine does not bar contempt or execution proceedings ancillary to a final judgment
- Leave of court is no longer required before bringing an application for committal for contempt
- Knowledge of an order supersedes personal service in contempt proceedings
Court orders
#- 1.The Respondents and interested parties found guilty of contempt of the judgment and decree dated 22nd March 2012 and the eviction order dated 14th November 2017
- 2.The Respondents and interested parties each condemned to pay a fine of Kshs. 100,000/-, in default to serve a term of 2 months in civil jail, effective immediately
- 3.The application dated 20th February 2019 allowed in its entirety
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Section 5 of the Judicature Act, Order 51 Rule 1 of the Civil Procedure Rules and Section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Mathitu Nderitu & nother v Settlement Fund Trustees & 2 others; Fredrick Wan’gombe Nderitu & another (Proposed Interested Parties) [2019] KEELC 2346 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 20th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2346/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.