Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2020] KEELC 561 (KLR)
The bottom line
#A Kenyan land court declined to jail parties for disobeying a court order, confirming that knowledge of an order counts as service and jail is truly a last resort.
What this practically means
#Executive summary
#Key legal issues
#Competence of contempt proceedings without notice to the Attorney General/DPP
The application is competently before the court; following English law as incorporated by section 5(1) of the Judicature Act, prior notice to the Crown is no longer required
Section 5(1) of the Judicature Act adopts English contempt law. After the Woolf reforms and replacement of Order 52 by Civil Procedure Rule 81 in England, notice to the Crown before commencing contempt proceedings was abolished. Relying on the Football Federation case, the court held no notice to the Attorney General or DPP was necessary before filing the contempt application.
Validity and service/awareness of the decree
A valid and unambiguous decree was issued on 27/2/2019 and all alleged contemnors were aware of the judgment and decree, whether by presence at delivery, service, or circumstance
The judgment of 19/12/2018 was delivered in the presence of the 1st respondent and his counsel, who promptly filed a Notice of Appeal. A decree was extracted, sealed and served by a licensed process server, except as to some respondents who were not found. The court found knowledge could be proved circumstantially and that the respondents never denied awareness of the decree.
Whether to commit the respondents and punish them for contempt
The court declined to commit: the application had been substantially compromised and committal is a last resort
The applicant's advocate disclosed on 16th November, 2020 that the applicant and the 4th, 5th, 6th, 7th, 9th and 10th respondents had reached an arrangement for purchase of the portions they occupy, compromising prayer (b). Adopting the Katsuri principle that committal is a last resort, and noting contempt proceedings would not deliver the fruits of the judgment, the court excluded those respondents and left the applicant to pursue other enforcement measures.
Legal principles established
#- The standard of proof in contempt proceedings is higher than the balance of probabilities but below the criminal standard
- Knowledge of a court order supersedes the requirement of personal service
- Committal for contempt is a last resort to be exercised with great care
- An intention to appeal does not excuse disobedience of a subsisting court order
Court orders
#- 1.The 4th, 5th, 6th, 7th, 9th and 10th respondents are excluded from this application and are found not to be in contempt of court
- 2.The applicant should consider filing another application excluding the 4th, 5th, 6th, 7th, 9th and 10th respondents
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Section 5(1) of the Judicature Act and Section 29 of the Environment and Land Court Act; the court being established under Article 162 of the Constitution with the status of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutiria Karumbai Macwa v James Njagi Makembo & 3 others [2020] KEELC 561 (KLR)", Case Analysis (2020). Not stated in judgment (committal application dated 25th May, 2020 arising from a decree issued 27/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/561/eng@2020-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.