Philip Chepkwony v Benjamin Tarus & 4 others [2019] KEELC 4865 (KLR)

Adopting Contempt in Modern New Zealand, the court required proof that the order was clear, unambiguous and binding; that the respondents had knowledge or notice; that they breached it; and that the breach was deliberate. Because contempt may curtail liberty, the proof standard is elevated. On the material, service, clarity, unambiguity and knowledge 'are still hanging in the balance', so the threshold was not met.

Following Basil Criticos, Justus Kariuki Mate v Martin Nyaga Wambora and Shimmers Plaza, the court held that knowledge supersedes personal service. Where litigants were represented by counsel present at the pronouncement of the ruling, it should be assumed counsel communicated the order and the consequences of disobedience to the client. However, the applicant still had to establish this knowledge, which failed.

The court noted Mwita J's judgment in Kenya Human Rights Commission v Attorney General declaring the entire Contempt of Court Act invalid for lack of public participation and encroachment on judicial independence. Until reversed, that decision binds the court, but the contempt jurisdiction survives through the Civil Procedure Rules and the Environment and Land Court Act.

Relying on Econet Wireless and Wildlife Lodges, the court reiterated the plain and unqualified obligation to obey orders of a competent court even where the recipient believes them irregular or void. Disobedience attracts committal or attachment. However, the court questioned whether the application was genuinely directed at upholding the court's dignity or scoring against the respondent.