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ELCPartially AllowedELC Case of 2016 (Busia) – suit number not stated in the judgment· [2019] KEELC 5057 (KLR)

AIK v RSN & 2 others [2019] KEELC 5057 (KLR)

Environment and Land Court
28 May 2019
5,115 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Busia found three people in contempt of injunction orders, ruling disobedience can be proven to a higher-than-civil standard, and ordered up to six months' detention plus vacant possession.

What this practically means

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Executive summary

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The Defendant/Applicant, registered owner of land parcel SOUTH TESO/ANGOROMO/7762, brought a Notice of Motion dated 8/6/2017 seeking contempt findings against the Plaintiff (his estranged wife, resident in the USA), her sister, and a foreman, for disobeying court orders issued on 28/7/2016, 10/11/2016 and 25/1/2017 restraining construction on the suit land. He also sought vacant possession pending the hearing of the suit. The Respondents opposed, arguing the criminal standard of proof applied, the photographs were unreliable, the 2nd and 3rd Respondents were neither parties nor named in the orders nor served, the 1st Respondent was not personally served, and the orders affected her active occupation of family land in a pending divorce context. The court held that in Kenya contempt need only be proved to a standard higher than a balance of probabilities but not beyond reasonable doubt, following Gatharia Mutitika v Baharini Farm. Photographs were valid back-up evidence for the Applicant's depositions, and bare denials could not displace his case. Non-parties performing restrained acts could be punished for contempt, and agency could be inferred from presence at the site. Service on the 1st Respondent's advocate sufficed. Finding all three Respondents participated in continued construction, the court allowed prayers (a) and (b): committal for up to six months and/or other punishment, and vacant possession pending the suit, with costs to the Applicant, and directed that absent Respondents be brought to court for further necessary action.

Key legal issues

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01

Standard of proof in contempt proceedings

Holding

The Kenyan standard is almost, but not exactly, proof beyond reasonable doubt; it is not the English criminal standard

Reasoning

The court distinguished English authorities requiring proof beyond reasonable doubt and adopted the Court of Appeal's position in Gatharia Mutitika v Baharini Farm, holding the English standard too high for an offence that is quasi-criminal. The Respondents produced no Kenyan authority supporting the criminal standard.

p. 4
02

Evidential value of photographs in contempt applications

Holding

Photographs are back-up evidence for depositions, not stand-alone proof; bare denials without explanation cannot displace a good case

Reasoning

The court held that photographs cannot explain their own contents or provenance and must be read alongside the depositions they accompany. The Respondents erred by treating them as stand-alone evidence and relying on bare denials, when a good defence requires denials accompanied by credible explanations, on a balance of probabilities.

p. 4
03

Liability of non-parties for contempt

Holding

Persons not named in the suit or in the order, but performing restrained acts or acting as agents of the restrained party, may be cited for contempt

Reasoning

The orders restrained not only the named party but her servants, agents and people working at her direction. The court adopted a liberal, broad interpretation of these terms so that 'crooks on hire' cannot escape punishment, and held that persons found violating orders are brought to court to answer for their conduct, not to be parties.

p. 4
04

Service of contempt orders on a party represented by counsel

Holding

Service on the party's advocate, or the advocate's presence in court when orders were made, suffices; personal service on the 1st Respondent (living abroad) was unnecessary

Reasoning

There is a rebuttable presumption that an advocate reports court developments to the client, so knowledge of the order by counsel is imputed to the client. The court relied on Canadian, American and Kenyan authority (Basil Criticos) supporting this inference of knowledge.

p. 5
05

Interpretation of the orders and intervening family circumstances

Holding

The orders were plain and clear; being husband and wife, the land being family land, or a pending divorce did not excuse obedience

Reasoning

Counsel should have sought clarification at the first opportunity if the orders were unclear; belated interpretive objections were a red herring. Family circumstances do not obviate the duty to obey court orders, which sustains judicial authority and the rule of law.

p. 5

Legal principles established

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  • The standard of proof in contempt proceedings in Kenya is higher than proof on a balance of probabilities but not proof beyond reasonable doubt
  • A person not named as a party to a suit but served with, or found acting in violation of, a court order can be punished for contempt
  • Knowledge of a court order by a contemnor’s advocate suffices; personal service is not required where the party is represented by counsel served or present when the order was made
  • A court may infer agency where a person is seen performing work at a place which has been restrained

Court orders

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  1. 1.The Respondents be punished for disobeying court orders issued on 28/7/2016, 10/11/2016 and 25/1/2017 by being committed to detention in prison for a period not exceeding 6 months and/or in such additional manner as the court deems appropriate (prayer (a) granted)
  2. 2.The Respondents and their agents including their watchmen to vacate the premises and land parcel SOUTH TESO/ANGOROMO/[...] and hand over vacant possession to the Applicant pending the hearing and conclusion of the suit (prayer (b) granted)
  3. 3.Costs of the application granted to the Applicant
  4. 4.If the Respondents are not in court at delivery of the ruling, the Applicant to act with all due dispatch to ensure they are brought to court for further necessary action

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 67
  • Civil Procedure RulesOrder 40 Rule 3

Cases cited (6)

  • In RE Bramblevale Limited
    [1969] 3 ALL ER 1062
  • Dean Vs Dean
    [1987] FLR 517 (Civil Division)
  • Gatharia Mutitika & others Vs Baharini Farm Limited
    [1987] eKLR
  • Bhatneger Vs Canada (Minister of Employment and immigration)
    [1990] 2 SCR 217
  • United States Vs Revie
    834 F. 2d 1198, 1203 (5th Cir. 1987)
  • Basil Criticos Vs Attorney General
    [2012] eKLR
Jurisdiction invoked
Sections 3A and 67 of the Civil Procedure Act and Order 40 Rule 3 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, "AIK v RSN & 2 others [2019] KEELC 5057 (KLR)", Case Analysis (2019). ELC Case of 2016 (Busia) – suit number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5057/eng@2019-05-28

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