Diamond Trust Bank Kenya Limited v Wardpa Holdings Limited & 6 others [2019] KEELC 3365 (KLR)
The bottom line
#A Kenyan court kept money-freezing orders in place despite defective service, but refused to punish an advocate for contempt because knowledge of the order wasn't proven.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure of personal service on an ex parte preservatory order
Although the 5th defendant was not personally served, the court declined to set aside the order of 9/11/2016 in the interest of justice given the serious allegations of fraud and the need to preserve the sale proceeds pending the main suit
The process server conceded the 5th defendant was not personally served; he was misled by the 2nd and 4th defendants as to identity. The court would ordinarily set the order aside but declined because the suit alleges a fraudulent parallel title used to obtain credit exceeding Kshs 100,000,000 and to dissipate sale proceeds. Preservation was held necessary to avoid facilitating the alleged scheme and to allow prompt disposal of the main suit.
Whether an advocate's affidavit containing documentary annexures should be struck out
The affidavit of counsel stands where it does not depose to contested facts; mere annexture of correspondence not contested by the parties does not warrant striking out
The impugned affidavit placed before the court correspondence and orders whose authors and recipients participated in the proceedings and did not contest its contents. The trite rule against counsel swearing affidavits on contested facts was acknowledged, but since the 5th defendant contested none of the depositions, there was no basis for striking out the affidavit.
Whether contempt was established against a non-party advocate who released sale proceeds
No contempt established; knowledge of the order was not proved to the required standard since the email was allegedly non-functional and personal service came after the transfer
The court applied the Kamau criteria: wilful and deliberate disobedience of a known, clear order, proved to a standard above balance of probabilities. Mr Siagi was not a party to the suit; evidence that he saw the email of 10/11/2016 was inconclusive and personal service was effected after he had transferred the money. The benefit of doubt was given to him.
Legal principles established
#- To commit a person for contempt, the court must be satisfied of wilful and deliberate disobedience of an order the person was aware of; the order must be clear and precise; and the standard of proof is higher than balance of probabilities though below beyond reasonable doubt
- Knowledge of a court order suffices; personal service is not necessary where a party is aware of the order
- Where there is contestation about facts, counsel should not be the one swearing affidavits
Court orders
#- 1.The 5th defendant's notice of motion dated 13/12/2016 is declined
- 2.The plaintiff's notice of motion dated 7/2/2017 seeking contempt orders is declined
- 3.Each party to bear their respective costs of the two applications
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 19 Rule 2 of the Civil Procedure Rules, 2010 (5th defendant's application); Sections 23, 25 and 27 of the Contempt of Court Act and Order 40 Rule 3 of the Civil Procedure Rules (plaintiff's application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Trust Bank Kenya Limited v Wardpa Holdings Limited & 6 others [2019] KEELC 3365 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3365/eng@2019-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.