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ELCDismissedNotice of motion dated 15th February 2017· [2020] KEELC 2039 (KLR)
Nkugwe Investments Limited v Jane Njeri Wanjiru Kihara & 9 others [2020] KEELC 2039 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#A Kenyan court threw out a contempt claim because the applicants couldn't strictly prove the defendants knowingly disobeyed a 2006 consent order.
What this practically means
#Executive summary
#The plaintiff moved the court by notice of motion dated 15th February 2017 seeking contempt findings against the defendants and five other persons and entities, committal to civil jail for six months, a fine of KES 10,000,000, denial of audience, demolition of structures erected in violation of consent orders issued on 23rd June 2006, cancellation of dealings, and liberty to demolish with police assistance. The application was supported by affidavits of the plaintiff's general manager and opposed by affidavits of the 2nd, 4th and 5th contemnors, with the 6th contemnor filing grounds of opposition; the 1st defendant filed nothing. The court canvassed the matter on written submissions. The single issue was whether the application was merited. The court noted that the 2006 consent order binding the plaintiff and the 1st defendant restrained disposal of the suit property, but the 2nd to 6th contemnors were not parties to the suit at that time, and no proof of service or knowledge of the orders on them existed. The acts of disobedience by the 1st contemnor were not clearly demonstrated. Applying the standard in Gatharia K. Mutitika vs Baharini Farm Ltd as approved in Katsuri Limited vs Kapurchand Depar Shah, contempt is quasi-criminal and must be proved with strictness consistent with the charge. The court found the plaintiff had not made out its case and had delayed, and dismissed the application with costs to the 2nd to 6th contemnors.
Key legal issues
#01
Whether contempt was established against the 1st to 6th contemnors for disobeying the consent orders of 23rd June 2006
Holding
Application dismissed; contempt not proved
Reasoning
The 2nd to 6th contemnors were not parties to the suit in 2006, and there was no proof of service of the orders or knowledge. The acts of disobedience by the 1st contemnor were not clearly identified. Contempt is quasi-criminal and demands strict proof; the applicant failed to discharge that burden.
p. 3
Legal principles established
#- Contempt being quasi-criminal in character, the breach must be precisely defined and proved with strictness consistent with the gravity of the charge, and contempt should not be used where another remedy exists
Court orders
#- 1.The notice of motion dated 15th February 2017 is dismissed
- 2.Costs to the 2nd to 6th contemnors
- Jurisdiction invoked
- Contempt of Court Act, 2017 and Order 40 rules 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkugwe Investments Limited v Jane Njeri Wanjiru Kihara & 9 others [2020] KEELC 2039 (KLR)", Case Analysis (2020). Notice of motion dated 15th February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2039/eng@2020-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.