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ELCDismissedELC Case (Kakamega); Notice of Motion dated 15th July 2021· [2022] KEELC 909 (KLR)

Mary Awino Kweyu v Lawrence Mmata Chore & another [2022] KEELC 909 (KLR)

Environment and Land Court
15 March 2022
DOD. O. Ohungo
2,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt claim because the applicant couldn't prove wilful disobedience of a court order to a heightened standard of proof.

What this practically means

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Executive summary

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The plaintiff, by Notice of Motion dated 15th July 2021, sought a finding that the first defendant was in contempt of an order made on 24th March 2021, which directed him to deposit all monthly rental income from land parcel Butsotso/Shikoti/17938 into court and to produce a full and accurate account of rental income collected since 4th July 2019. The motion also sought an audit of rental income, execution against the first defendant, and orders that future rents be collected by the plaintiff's advocates. The first defendant denied collecting any rent, asserting there were no tenants, and objected that the court lacked jurisdiction since the Contempt of Court Act, 2016 had been declared unconstitutional. The court held that Section 5(1) of the Judicature Act preserves the power to punish for contempt, extending to courts of equal status with the High Court under Article 162(2)(b), and that every court has inherent powers to uphold its dignity; the jurisdictional objection failed. On the merits, the court applied the heightened standard of proof for contempt and the requirement that the order disobeyed be clear and wilful disobedience demonstrated. Because the applicant produced no evidence of rent-paying tenants or rental inflow, and the order was conditional on several events, wilful disobedience was not proved. Prayers 2 to 7 were also refused as premature at the interlocutory stage, mesne profits being a matter for trial. The motion was dismissed with costs in the cause, and directions were promised for an expeditious hearing of the main suits.

Key legal issues

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01

Jurisdiction to punish contempt after nullification of the Contempt of Court Act, 2016

Holding

The court has jurisdiction notwithstanding the Act's unconstitutionality

Reasoning

Although the Contempt of Court Act, 2016 was declared unconstitutional, there is no jurisdictional void. Section 5(1) of the Judicature Act confers on the High Court and Court of Appeal the same contempt powers as the High Court of Justice in England, and 'High Court' extends to courts of equal status under Article 162(2)(b). Every court also has inherent powers to uphold its authority and dignity.

p. 2
02

Whether wilful disobedience of the 24th March 2021 order was proved

Holding

Wilful disobedience was not demonstrated

Reasoning

Contempt must be proved to a standard higher than the balance of probabilities. The order required deposit of rental income and production of accounts, but its efficacy depended on proof of rent-paying tenants, which the applicant did not establish by contrary evidence. The order was conditional on many events and not clear enough to leave no doubt as to what was to be done, so wilful disobedience was not proved.

p. 3
03

Whether interlocutory rent-collection and audit orders should issue

Holding

Refused; such matters should await trial

Reasoning

The applicant claims mesne profits in the plaint, which should be pursued at trial. The court cautioned against parties focusing on interlocutory applications at the expense of the substantive suits filed in 2018 and directed an expeditious hearing of the suits on the merits.

p. 3

Legal principles established

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  • The unconstitutionality of the Contempt of Court Act, 2016 left no void; Section 5(1) of the Judicature Act confers power to punish for contempt, and courts of equal status to the High Court are included
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, and the applicant must demonstrate wilful disobedience of a clear order

Court orders

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  1. 1.Notice of Motion dated 15th July 2021 dismissed
  2. 2.Costs shall be in the cause
  3. 3.Directions to be given for expeditious hearing and determination of the suits

Authorities

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Legislation

  • Contempt of Court Actsection 28(1)
  • Judicature Actsection 5(1)
  • Constitution of Kenya 2010Article 162(2)(b)

Cases cited (8)

  • Kenya Human Rights Commission v Attorney General & another
    [2018] eKLR
  • Samuel M. N. Mweru & Others v National Land Commission & 2 others
    [2020] eKLR
  • Christine Wangari Gachege vs. Elizabeth Wanjiru Evans & 11 Others
    [2014] eKLR
  • Woburn Estate Limited v Margaret Bashforth
    [2016] eKLR
  • Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 14 others
    [2019] eKLR
  • Mutitika vs. Baharini Farm Limited
    [1985] KLR 229
  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
  • Micheal Sistu Mwaura Kamau v Director of Public Prosecutions & 4 others
    [2018] eKLR
Jurisdiction invoked
Section 5(1) of the Judicature Act; Article 162(2)(b) of the Constitution of Kenya 2010

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, "Mary Awino Kweyu v Lawrence Mmata Chore & another [2022] KEELC 909 (KLR)", Case Analysis (2022). ELC Case (Kakamega); Notice of Motion dated 15th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/909/eng@2022-03-15

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