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ELCDismissedNotice of Motion dated 12th May 2017 (suit particulars not stated in judgment)· [2019] KEELC 4783 (KLR)

Lakhana Lalji v Absons Limited (K) [2019] KEELC 4783 (KLR)

High Court of Kenya at Nairobi
24 January 2019
LKL. Komingoi
881 words in judgment
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The bottom line

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The High Court refused to jail a property owner for contempt because the neighbour claiming breach of a court order failed to prove it convincingly.

What this practically means

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Executive summary

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The plaintiff/applicant, Lakhman Lalji, brought a notice of motion dated 12th May 2017 under Section 5(1) of the Judicature Act and the inherent jurisdiction of the court, seeking the committal of the defendant/respondent to civil jail for disobedience of orders issued on 27th May 2016 by Lady Justice Gitumbi in the High Court at Nairobi, plus costs. The application was supported by the applicant's affidavit and opposed by a replying affidavit of Pravin Maru, a director of the respondent, sworn on 30th June 2017, in which he deposed that the new electric gate has a bell anyone can ring to access the property and that he had offered the applicant remotes to operate the gate, which the applicant refused, insisting on demolition. The applicant filed no further affidavit to rebut these averments. The court, canvassed by written submissions (only the applicant's being on record), framed the issue as whether the respondent was guilty of contempt and what orders should issue. Adopting the standard of proof in Refrigeration & Kitchen Utensils Ltd v Gulbachand Porpatal Shah as approved from Gatharu Mitika v Baharini Farm - higher than balance of probabilities but lower than beyond reasonable doubt because contempt is of criminal character - the judge held that the respondent had given a reasonable explanation for installing the electric gate, that the applicant failed to demonstrate inability to access his house, and that contempt was not proved. The application was dismissed with costs abiding the outcome of the main suit, and the applicant was directed to set the suit down for hearing.

Key legal issues

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Whether installation of an electric gate in place of the old gates amounted to contempt of the court order of 27th May 2016

Holding

It did not; the applicant failed to discharge the burden of proving contempt to the applicable standard

Reasoning

The applicant bore the burden of proving contempt beyond the balance of probabilities but short of beyond reasonable doubt. The respondent's director deposed, unrebutted by any further affidavit, that the electric gate has a bell for access and that remotes were offered to the applicant and refused. No evidence showed the applicant was unable to access his house, so no disobedience of the order was established.

p. 2

Legal principles established

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  • The standard of proof in contempt proceedings is higher than the balance of probabilities but lower than beyond reasonable doubt, because contempt is of a criminal character and may cost the contemnor his liberty

Court orders

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  1. 1.The notice of motion dated 12th May 2017 is dismissed
  2. 2.The costs of the application do abide the outcome of the main suit
  3. 3.The plaintiff/applicant should set down the suit for hearing

Authorities

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Legislation

  • Judicity Act, Cap 8 Laws of KenyaSection 5(1)
  • Supreme Court of England 1965 (Order 51 rule 3)Order 51 rule 3

Cases cited (5)

  • Charity Mpano Ntiyieone vs China Communications Construction Company Limited & Another
  • Maisha Nishike Ltd vs Commissioner of Lands & Others
    [2011] e KLR
  • Kalyasoi Farmers Cooperative Society & Others vs County Council of Narok
  • Refrigeration & Kitchen Utensils Limited vs Gulbachand Porpatal Shah & Others
    Civil Appeal No 39 of 1990
  • Gatharu Mitika & Others vs Baharini Farm Limited
    Civil Appeal No 24 of 1995
Jurisdiction invoked
Section 5(1) of the Judicature Act, Cap 8 Laws of Kenya; the inherent jurisdiction of the court

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, "Lakhana Lalji v Absons Limited (K) [2019] KEELC 4783 (KLR)", Case Analysis (2019). Notice of Motion dated 12th May 2017 (suit particulars not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4783/eng@2019-01-24

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