Sutton Holdings Limited v Abdulahi Omar Said (Environment & Land Case 75 of 2017) [2020] KEELC 3357 (KLR)
The bottom line
#A Kenyan court refused to jail a company director for contempt because the order breached was vague and the evidence fell short of the near-criminal standard required.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over a non-party contemnor
The court has jurisdiction to punish for contempt a person not named as a party, including a company's managing director
Relying on Obaga, J in the LSG Lufthansa case, the court held that third parties who commit contempt may be committed, and that a company is represented by its directors or officers. The objection that the alleged contemnor was not a party was a technicality contrary to Article 159 of the Constitution.
Standard of proof in contempt
Contempt being quasi-criminal, the applicant must prove the breach beyond peradventure, to a standard almost but not exactly beyond reasonable doubt
Applying Gatharia K. Mutikika v Bahamin Farm Ltd, the court held the burden lies on the applicant and committal powers must be exercised with great care, as a last resort and only in the clearest of cases.
Whether contempt was proved
Contempt was not proved: the order did not define the status quo, the alleged acts were imprecise, no evidence of demolition or vandalism was exhibited, and key witness statements were recanted
The order of 29th June 2017 did not describe what status quo was to be maintained. The applicant relied on police statements later recanted in a statutory declaration as having been obtained under duress. The applicant failed to prove that the respondent gave the instructions alleged, and the court cannot commit on mere allegations.
Legal principles established
#- Non-parties, including directors and officers of a company, may be committed for contempt of court; jurisdiction is not limited to parties before the court
- The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
- Committal for contempt is a last resort, to be adopted only in the clearest of cases
Court orders
#- 1.The Notice of Motion dated 16th April 2019 is dismissed with costs
- Jurisdiction invoked
- Section 5 of the Judicature Act (Cap 8), Order 52 of the Supreme Court of England Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sutton Holdings Limited v Abdulahi Omar Said (Environment & Land Case 75 of 2017) [2020] KEELC 3357 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3357/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.