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ELCDismissedNotice of motion dated 5th December 2016 (suit pending before the High Court, Nairobi)· [2019] KEELC 2738 (KLR)

Kirara Kiiru & 4 others v Gee Tee Sons Limited & 2 others [2019] KEELC 2738 (KLR)

High Court of Kenya
19 June 2019
1,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court refused to jail company directors for contempt because they were never personally served with the injunction they allegedly breached.

What this practically means

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Executive summary

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This was a notice of motion dated 5th December 2016 in which the plaintiffs/applicants sought committal to civil jail of six directors of the 1st defendant for contempt of an interim injunction issued by Gacheru J on 26th September 2016 restraining interference with the plaintiffs' possession of demised premises. The applicants alleged the directors issued Notices of Termination of Tenancy dated 19th October 2016 while the order was in force, and further sought attachment and sale of the directors' properties, striking out of the termination notices, and costs on a full indemnity basis. The application was opposed; the 1st respondent argued the interim orders did not bar lawful termination of tenancy and that no director was personally served with the order. The court framed three issues: service of the order, whether the contemnors disobeyed it, and costs. Examining the process server's affidavit of Joseph Cedric Amulyoto, the court found the directors were not personally served and had no knowledge of the order. Applying authority that contempt responsibility attaches to individuals rather than every official of a respondent, that the corporate veil had not been laid open to piercing, and that contempt must be proved to a standard higher than balance of probabilities but below beyond reasonable doubt given its criminal character and liberty consequences, the court held the applicants had failed to discharge the burden. The application was dismissed and costs were made to abide the outcome of the main suit.

Key legal issues

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01

Service of the court order on the alleged contemnors

Holding

The directors of the 1st defendant were not personally served and had no knowledge of the order

Reasoning

The process server's affidavit showed he went to the company offices, was directed to Jane Wambui Thuo's office, but she declined to receive service on behalf of the company. There was no affidavit of service showing each director was personally served. Personal service or proven knowledge is a precondition to contempt findings against individuals.

p. 3
02

Standard and burden of proof in contempt proceedings

Holding

The applicant must prove knowledge of the order and wilful disobedience to a standard above balance of probabilities but below beyond reasonable doubt

Reasoning

Contempt carries criminal character and may result in deprivation of liberty. The court relied on Court of Appeal authority establishing this intermediate standard and the requirement that the court be satisfied beyond any shadow of doubt that the contemnor acted with full knowledge of the order. The applicants failed to discharge this burden.

p. 3
03

Piercing the corporate veil for contempt

Holding

No grounds were laid to remove the corporate veil to attach liability to directors

Reasoning

The applicants sought committal of directors of a company without establishing personal service or personal responsibility. Following the Emukule J holding, responsibility in contempt attaches to individuals, and the applicants neither served the directors personally nor laid grounds for lifting the corporate veil.

p. 3

Legal principles established

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  • For purposes of contempt proceedings, responsibility attaches to the individual official, not every official of the respondent
  • The threshold for contempt requires proof of knowledge of the order and the standard is higher than balance of probabilities but lower than beyond reasonable doubt

Court orders

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  1. 1.The notice of motion dated 5th December 2016 is dismissed for lack of merit
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 63(c)
  • Judicature ActSection 5(1)
  • High Court (Organization and Administration) ActSection 36(1)(b)
  • Civil Procedure RulesOrder 30 rules 3 and 8

Cases cited (9)

  • Shimmers Plaza Ltd vs National Bank of Kenya Ltd
    [2015] eKLR
  • Justus Kariuki Mate & Another vs Martin Nyaga Wambora & Another
    [2014] eKLR; CA Civil Appeal No. 24 of 2014
  • Christine Wangari Gachege vs Elizabeth Wanjiru Evans & 11 others
    [2014] eKLR
  • Katsuri Limited vs Kapurchand Depar Shah
    [2016] eKLR
  • Jacob Zedekiah Ochino & Another vs George Aura Okombo & 4 Others
    [1989] eKLR
  • Nyamodi Ochieng Nyamogo & Another vs Kenya Post & Telecommunication Corp
    [1994] eKLR
  • Republic Exparte Farid Mohamed Al Maary & 2 Others vs County Government of Mombasa
    Mombasa HCCC Misc Application No. 20 of 2015
  • Refrigeration & Kitchen Utensils Ltd vs Gulabchand Pupattal Shah & Others
    Civil Appeal No 39 of 1990
  • Gatheru Mutika & Others vs Bahari Farm Limited
    Civil Appeal No. 24 of 1995
Jurisdiction invoked
Sections 1A, 1B, 3 and 63(c) of the Civil Procedure Act; Section 5(1) of the Judicature Act; Section 36(1)(b) of the High Court (Organization and Administration) Act; Order 30 Rules 3 and 8 of the Civil Procedure Rules

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, "Kirara Kiiru & 4 others v Gee Tee Sons Limited & 2 others [2019] KEELC 2738 (KLR)", Case Analysis (2019). Notice of motion dated 5th December 2016 (suit pending before the High Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2738/eng@2019-06-19

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