Michael Wambua Mulwa & another v John Mulwa Nzioki, Jackson Muisyo Mulwa & 4 others [2020] KEELC 3736 (KLR)
The bottom line
#Ignoring a Kenyan court order is no defence even without personal service; knowing about it is enough to be held in contempt.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants were in contempt of the injunction orders of 17th April, 2018
The 1st and 2nd Defendants intentionally and contemptuously subdivided and transferred the suit properties during the pendency of a valid court order.
The Defendants' advocates were aware of the injunctive orders by 26th April, 2018 when they appeared in court and the orders were extended in their presence; the extracted orders were served on them on 11th May, 2018. Official searches showed transfers and sub-divisions between June and October 2018. The Defendants failed to produce sale agreements or transfers proving the process predated the orders.
Whether personal service is required before a contempt finding
Personal service is not a prerequisite; awareness of the order and its contents by the respondent or his advocate suffices.
Relying on Shimmers Plaza Limited vs. National Bank of Kenya Limited, the court held that the Applicant need only show the respondent or his advocate was aware of the order. Here the Defendants' advocates were in court when the orders were extended and were served with the extracted orders on 11th May, 2018.
Legal principles established
#- A person who knowingly wilfully breaches an injunction or order of stay is liable to be committed for contempt of court.
- Elements to prove contempt are the terms of the order, knowledge of the terms by the respondent and failure to comply; wilfulness and bad faith are then inferred.
- Personal service of an order is not a prerequisite to a finding of contempt; awareness of the order and its contents suffices.
- A court order remains binding unless discharged and must be obeyed.
Court orders
#- 1.A declaration that the 1st and 2nd Defendants are in contempt of the orders of this court of 17th April, 2018 and issued on 7th May, 2018
- 2.The 1st and 2nd Defendants to mitigate before a sentence is issued by the court
- 3.The 1st and 2nd Defendants to pay the costs of the Application
- Jurisdiction invoked
- Inherent jurisdiction of the court to punish for contempt of its orders (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Wambua Mulwa & another v John Mulwa Nzioki, Jackson Muisyo Mulwa & 4 others [2020] KEELC 3736 (KLR)", Case Analysis (2020). Not stated in the extract (Machakos ELC suit involving parcels Mavoko Town Block 3/62387-62393 and 3558). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3736/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.