Joel Furukha v Alfred Muresia & another [2020] KEELC 610 (KLR)
The bottom line
#A Bungoma court found a landowner in contempt for interfering with a court-ordered boundary reinstatement, confirming court orders in Kenya must be obeyed.
What this practically means
#Executive summary
#Key legal issues
#Applicable procedural basis for contempt application
The orders of 31st July 2018 were not interlocutory injunctive orders, so Section 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules did not apply; the Court relied on its inherent jurisdiction under Section 3A of the Civil Procedure Act, reinforced by Sections 1A, 1B and Article 159 of the Constitution, and on Section 5 of the Judicature Act and common law since the Contempt of Court Act was declared unconstitutional.
The Court distinguished the nature of the orders violated. Having found them to be final reinstatement orders rather than interlocutory injunctions, the specific contempt-enforcement provisions tied to injunctions were inapplicable. The Court instead anchored the application in the inherent jurisdiction, which survives the invalidity of the Contempt of Court Act and enables the Court to make orders necessary for the ends of justice and to prevent abuse of its process.
Standard of proof in civil contempt
Contempt in civil cases must be proved to a standard higher than balance of probabilities but not beyond reasonable doubt; the Court was satisfied the plaintiff met that standard.
Counsel for the 1st defendant argued proof beyond reasonable doubt, citing Lord Denning in Re Bramblevale Ltd. The Court preferred the Court of Appeal's formulation in Mutitika v Baharini Farm Ltd, holding contempt quasi-criminal in nature. Applying that standard to the totality of the evidence, including the County Surveyor's report and the 2nd defendant's corroborating affidavit, the Court found contempt proved.
Whether the 1st defendant disobeyed the Court's boundary reinstatement orders
Yes. The boundary was re-established on 21st August 2019, but the 1st defendant, jointly with armed sons and youths, interfered with the boundary markings and beacons, proved to the applicable standard.
The Court accepted the plaintiff's affidavits and the corroborating affidavit of the 2nd defendant, the 1st defendant's own co-defendant, which was uncontroverted. The 1st defendant's assertion of malice and that the boundary was intact was rejected. A letter from the 1st defendant's then counsel showed he never intended to comply with the judgment of 2nd December 2015 or subsequent orders.
Legal principles established
#- The standard of proof in civil contempt proceedings is higher than proof on the balance of probabilities but not beyond reasonable doubt
- There is a plain and unqualified obligation to obey court orders unless and until they are discharged
- Court orders must be obeyed and flagrant disobedience must be punished to protect the dignity and authority of the Court
Court orders
#- 1.Summons to issue to the 1st defendant to appear before the Court on 10th December 2020 for further orders, to be served by the Court
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act, Sections 1A, 1B, 63(e) and Order 40 of the Civil Procedure Rules, Section 5 of the Judicature Act and common law principles
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Furukha v Alfred Muresia & another [2020] KEELC 610 (KLR)", Case Analysis (2020). Bungoma H.C ELC NO 110 OF 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/610/eng@2020-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.