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ELCDismissedNotice of Motion dated 14th January, 2021 (E&L case, Nyeri)· [2021] KEELC 1195 (KLR)
Charity Gathigia Nduati v Martin Nduati Njoroge & 3 others [2021] KEELC 1195 (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 landowner had no evidence, showing accusations alone cannot punish disobedience of court orders.
What this practically means
#Executive summary
#By a Notice of Motion dated 14th January 2021 under Section 5(1) of the Judicature Act, Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, the Plaintiff sought the committal of the 2nd and 3rd Defendants for contempt of status quo orders issued by Lady Justice Mary Oundo on 6th February 2020 and extracted on 10th February 2020, restraining disposal, transfer or sub-division of LR Thegenge/Karia/3782 pending inter-partes hearing. The Plaintiff alleged that on 1st September 2020 the Defendants rented the suit land to one Simon Kangethe Kimani and his family and had advertised it for sale on the e-commerce platform e-jiji. The Defendants, through a Ground of Opposition and a Replying Affidavit, denied the allegations, asserting that the property had neither been rented out nor advertised, and that they resided outside Nyeri County with relatives occupying the houses as licensees. The court, through J. O. Olola J, restated the principles of civil contempt: the applicant must prove the terms of the order, the respondent's knowledge, and willful non-compliance, to a standard higher than balance of probabilities but short of beyond reasonable doubt, applying Mutitika v Baharini Farm Ltd and the Supreme Court's decision in Republic v Ahmad Aboltathi Mohamed. Finding no evidence that the Defendants rented out or advertised the property, the court held the Plaintiff had woefully failed to discharge the burden and dismissed the application with costs on 4th November 2021.
Key legal issues
#01
Whether contempt was proved to the applicable standard
Holding
The Plaintiff failed to prove the contempt; the application was dismissed
Reasoning
Contempt proceedings are quasi-criminal and demand a standard higher than balance of probabilities, almost but not beyond reasonable doubt. The Plaintiff alleged the property was rented out and advertised online but produced no evidence linking the advertisements to the Defendants or proving any tenancy. Mere assertion without proof cannot sustain a committal order.
p. 3
Legal principles established
#- In civil contempt proceedings the applicant must prove the terms of the order, the respondent's knowledge of those terms, and willful failure to comply
- The standard of proof in contempt proceedings is higher than the balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.The application dated 14th January, 2021 is dismissed with costs.
- Jurisdiction invoked
- Section 5(1) of the Judicature Act, Section 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charity Gathigia Nduati v Martin Nduati Njoroge & 3 others [2021] KEELC 1195 (KLR)", Case Analysis (2021). Notice of Motion dated 14th January, 2021 (E&L case, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1195/eng@2021-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.