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ELCPartially Allowed· [2021] KEELC 3517 (KLR)

Mbugua Thuo v Josephat Mwangi Muhoro & 16 others [2021] KEELC 3517 (KLR)

Environment and Land Court
4 May 2021
DOD. O. Ohungo
1,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a deceased plaintiff's son to continue his land case but refused to jail the church defendants because contempt was not proved.

What this practically means

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Executive summary

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By a Notice of Motion dated 12th October 2020, the applicant, Eliud Ngugi Mbugua, sought three main reliefs in a land suit in which his late father, Mbugua Thuo, was the plaintiff: recording the plaintiff's death and his substitution as plaintiff; committing the 10th and 12th defendants (Deliverance Church through its pastor Aliakim Okwiri, and Joseph Kiragu Muraya) to prison for six months for allegedly violating orders said to have been adopted on 3rd February 2017; and fining them for the same alleged violation, with service on the OCS Molo Police Station to enforce the order. The applicant held a limited grant ad litem issued on 1st September 2020 in Nakuru High Court Probate and Administration Cause No. 22 of 2020; the plaintiff died on 5th January 2020. The defendants, through a replying affidavit sworn by the 12th defendant, opposed the contempt prayers, contending that no order of 3rd February 2017 was extracted, issued or served, and that the consent of 25th April 2016 merely barred disposal or alienation of the suit properties. The court found that the application for substitution was filed within one year of death, before abatement, and was unopposed, and granted it under Order 24 rule 3, directing an amended plaint within 14 days. On contempt, the court reiterated that the standard of proof is higher than the balance of probabilities, found no order of 3rd February 2017 on the record, and held that the consent adopted on 23rd March 2017 only prohibited disposal or alienation, not the deposit of building stones. The contempt prayers were dismissed, with costs of the application in the cause.

Key legal issues

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01

Substitution of a deceased plaintiff by his legal representative

Holding

Substitution granted under Order 24 rule 3; the application was made within one year of death, before abatement, and was unopposed

Reasoning

The court set out Order 24 rule 3, which requires the legal representative of a deceased sole plaintiff whose cause of action survives to be made a party. The applicant held a limited grant ad litem issued on 1st September 2020; the plaintiff died on 5th January 2020 and the application was filed within nine months, so the suit had not abated. The defendants did not oppose substitution, so the court saw no reason to refuse it.

02

Whether contempt of court was established against the 10th and 12th defendants

Holding

Contempt not established: the alleged order of 3rd February 2017 was not annexed or shown to have been extracted or served, and the consent of 25th April 2016 (adopted 23rd March 2017) only barred disposal or alienation

Reasoning

Contempt allegations are serious because liberty and property are at risk, attracting a higher standard of proof. The applicant relied on an order said to have been adopted on 3rd February 2017 but annexed only a consent dated 25th April 2016, with no evidence of adoption, extraction, issuance or service of any order on 3rd February 2017. The consent itself only prohibited disposal or alienation of the suit properties and did not preclude depositing building stones; hence no violation was made out.

p. 3

Legal principles established

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  • Every person against whom a court order is made has a duty to obey it unless and until it is discharged
  • The standard of proof in contempt proceedings is higher than the balance of probabilities applicable in ordinary civil proceedings
  • Court orders are binding directives, not suggestions or pleas
  • A consent order binds parties only to the extent of its defined terms

Court orders

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  1. 1.Eliud Ngugi Mbugua is substituted as the plaintiff in the place of Mbugua Thuo (deceased)
  2. 2.The new plaintiff to file and serve an amended plaint to reflect the substitution within 14 days from the date of delivery of the ruling
  3. 3.Prayers 3, 4 and 5 of the application are dismissed
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 3(1) and (2)

Cases cited (7)

  • Econet Wireless Kenya Limited vs Minister For Information & Communication of Kenya & Another
    [2005] eKLR
  • A.B & another v R.B
    [2016] eKLR
  • Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party)
    [2018] eKLR
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229
  • Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Coordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
  • Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 14 others
    [2019] eKLR
Jurisdiction invoked
Order 24 rule 3 of the Civil Procedure Rules (substitution of deceased plaintiff); inherent powers of the court in respect of contempt

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbugua Thuo v Josephat Mwangi Muhoro & 16 others [2021] KEELC 3517 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3517/eng@2021-05-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.