Gathuo & another v Mwangi & 3 others (Miscellaneous Application 5 of 2020) [2021] KEELC 4744 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd respondents disobeyed the status quo order of February 7, 2020
No contempt was established because the terms of the status quo order were ambiguous; the parties and the subordinate court held differing interpretations of what status quo was to be preserved
The court accepted its jurisdiction to punish contempt of subordinate court orders and endorsed the rule-of-law rationale for contempt. However, contempt requires clear and unequivocal terms of the order and proof to the Mutitika standard. The record showed no settled status quo at the time of the order; the applicants, respondents and the trial court each interpreted the order differently, so no wilful breach was proved.
Whether the 3rd and 4th respondents aided and abetted the contempt
No; aiding and abetting could not stand once primary contempt failed
The claim against the advocate respondents was derivative of the primary alleged contempt. Having found the applicants failed to prove contempt by the 1st and 2nd respondents, the court held the advocates could not be guilty of abetting a non-existent offence. The punishment question accordingly became moot.
Costs of the application
Costs followed the event; the successful respondents were awarded costs
Relying on section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd, the court held costs follow the event unless there is good reason to depart, and found none.
Legal principles established
#- Before alleged contemnors can be punished, the terms of the order must be clear and unequivocal and the disobedience proved to a standard higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- A status quo order that does not specify the status to be preserved is ambiguous and cannot ground a conviction for contempt
Court orders
#- 1.The notice of application dated April 8, 2020 is dismissed in its entirety
- 2.The respondents are awarded costs of the application
- Jurisdiction invoked
- Section 5 of the Judicature Act (Cap 8); the court entertained contempt of an order of the Senior Principal Magistrate's Court at Engineer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathuo & another v Mwangi & 3 others (Miscellaneous Application 5 of 2020) [2021] KEELC 4744 (KLR)", Case Analysis (2021). Contempt application dated April 8, 2020 (Nyahururu ELC proceedings re Engineer SPMCC No 29 & 30 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4744/eng@2021-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.