Goolbanu Shahnawaz Wissanji & another v Abdi Godana Dida & another [2022] KEELC 1509 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the order of 22nd July 2021 was an ex parte order that lapsed for non-service within three days
It was not an ex parte order under Order 40 Rule 4(1); it was made at a hearing fixed inter partes after service of notice, so Rule 4(3) did not apply and the order had not lapsed.
The application had been served for inter partes hearing; the respondents and their advocates were served with hearing notices but did not attend on 22nd July 2021. An order given after service but in a party's absence is made outside Order 40 Rule 4(1); hence Rule 4(2) and (3) on the fourteen-day duration and three-day service do not apply, and the order could not have lapsed.
Whether the officials are personally liable for contempt by association members
Yes - as elected officials of the 1st defendant, served with the order in that capacity, they bear responsibility for contempt by its officials and members.
The order's terms were clear and served on the contemnors as current officeholders. Construction continued after service and they did not dispute it nor show they alerted those building. Claiming lack of omnipresence or capacity is insufficient; accepting office carries responsibility to ensure compliance.
Whether contempt was proved to the required standard
Yes. The order was clear, served, and breach by continued construction was not denied; the officials' responsibility was established.
Applying Mutitika v Baharini Farm and Kamau v DPP, the order was clear and precise, the respondents knew of it, and continued construction was established by photographic evidence and admission. The standard, higher than balance of probabilities, was met, warranting a finding of contempt though sentence awaits mitigation.
Legal principles established
#- Every person against whom a court order is made must obey it unless and until it is discharged; disobedience results in contempt punishable by committal or attachment.
- Standard of proof in contempt proceedings is higher than balance of probabilities but almost, not exactly, beyond reasonable doubt.
- Officials of an association bear responsibility for contempt committed by its officials or members where the order was served on them in that capacity.
- An inter partes order made on a date fixed for hearing after service of notice, albeit in a party's absence, is not an ex parte injunction under Order 40 Rule 4(1) and does not lapse under Rule 4(3).
Court orders
#- 1.Finding that John Mwangi, Alice Wangari and Francis Wambua, Chairperson, Vice Chairperson and Secretary respectively of the 1st defendant, Kibarage Slums Association, are in contempt of the order made on 22nd July 2021
- 2.The said officials shall appear before the court on a date to be fixed to be heard in mitigation before a sentence is passed
- 3.The plaintiffs shall have the costs of the application
- Jurisdiction invoked
- Inherent contempt jurisdiction of the High Court/Environment and Land Court; Contempt of Court Act cited by the court; Civil Procedure Rules Order 40 Rule 4
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Goolbanu Shahnawaz Wissanji & another v Abdi Godana Dida & another [2022] KEELC 1509 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1509/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.