Wilhelmina I. Khaminwa, Ceceilia N. Kareithi, Helen K. Kirugu, Joyce G. Maina,Mary Mugo t/a Metpat Enterprises & another v Obadiah M. Wainaina t/aCountry Maps Agencies & another [2019] KEELC 4650 (KLR)
The bottom line
#A Kenyan court refused to jail officials for disobeying an injunction because the applicant couldn't prove the officials actually knew about the court order.
What this practically means
#Executive summary
#Key legal issues
#Lapse of injunction orders
The orders did not lapse merely with passage of time since the consent orders were to subsist until the suit was heard and determined
The consent orders issued by Mutungi J on 23rd July 2014 expressly provided that status quo be maintained until the suit was heard and determined. Because the orders were defined by the duration of the suit rather than a fixed period, no application for extension was required and Order 40 rule 6 lapse could not apply.
Leave and penal notice requirements in contempt proceedings
Leave is no longer required, and a penal notice was unnecessary for a consent order where all parties were represented by counsel
The court held that the requirement to seek leave before commencing contempt proceedings is no longer necessary in light of the Constitution and prevailing authority. Similarly, where a consent order was made with all parties represented by counsel, absence of a penal notice does not defeat contempt proceedings.
Personal service and knowledge of court orders
The alleged contemnors were not personally served and lacked knowledge of the orders; contempt cannot be established
The process server's affidavit did not name the secretary who allegedly acknowledged service and did not show personal service on the Chairman, Secretary and Treasurer. Given the high threshold in contempt matters, the applicant had to prove each contemnor's knowledge and wilful disobedience, which was not done.
Legal principles established
#- The standard of proof in contempt is higher than balance of probabilities but lower than beyond reasonable doubt
- Leave of the court is no longer required before commencing contempt proceedings
- In contempt proceedings responsibility attaches to individuals, not to every official of a respondent body
Court orders
#- 1.The preliminary objection dated 4th November 2016 is dismissed with no orders as to costs
- 2.The Notice of Motion dated 10th October 2016 is dismissed
- 3.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 Rule 3 of the Civil Procedure Rules, 2010 and other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilhelmina I. Khaminwa, Ceceilia N. Kareithi, Helen K. Kirugu, Joyce G. Maina,Mary Mugo t/a Metpat Enterprises & another v Obadiah M. Wainaina t/aCountry Maps Agencies & another [2019] KEELC 4650 (KLR)", Case Analysis (2019). Notice of Motion dated 10th October 2016 (suit pending before the Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4650/eng@2019-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.