Koech & another (Suing as Administrators of the Estate of Kipkereng Arap Koech - Deceased) v Kipkurere & another
The bottom line
#Kenya's Environment and Land Court found two parties in contempt of court orders but imposed a modest KES 100,000 fine instead of the millions requested.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants proved contempt of the orders of 17th November 2022
Contempt was proved: the intended contemnors admitted service and knowledge of the orders and admitted violation, and undertook to comply.
The court applied the three-pronged test for civil contempt: proof of the terms of the order, knowledge by the respondent, and failure to comply. The contemnors' own affidavit confirmed service of the orders of 17th November 2022 and knowledge of the contempt application, and they undertook to comply, amounting to an admission. The court therefore found the prerequisites satisfied and held them in contempt.
The applicable statutory framework for contempt
Section 5 of the Judicature Act confers on the High Court the same power to punish for contempt as the High Court of Justice in England, with reference to the procedure formerly in Order 52 RSC.
Relying on Christine Wangari Chege, the court explained that Section 5 of the Judicature Act directs Kenyan courts to refer to the powers of the High Court of Justice in England, which draws its contempt jurisdiction from the Contempt of Court Act 1981 and common law, with committal procedure formerly governed by Order 52 Rules 1-4 of the RSC.
Costs of the application
Costs were awarded to the applicants, to be borne by the contemnors, costs following the event under Section 27 of the Civil Procedure Act.
The court applied the general rule that costs follow the event and that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. Having succeeded, the applicants were awarded costs of the application against the contemnors.
Legal principles established
#- To succeed in civil contempt proceedings the applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply.
- Contempt power is inherent in courts; a court without contempt power is not a court.
- Costs follow the event under Section 27 of the Civil Procedure Act.
Court orders
#- 1.That the 1st and 2nd Contemnors are guilty of disobeying this Court's orders dated 17th November, 2022 and subsequently are held in contempt.
- 2.That the 1st and 2nd Contemnor to pay a total fine of Kenya Shillings One Hundred Thousand as a penalty for being in Contempt of Court by willfully disobeying the orders of this court issued on 17th November, 2022 or being imprisoned in jail for a term of one month and forthwith pudge its contempt within thirty (30) days from the date hereof.
- 3.Costs of the Application to be borne by the Contemnors.
- Jurisdiction invoked
- Section 5 of the Judicature Act (contempt jurisdiction); Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koech & another (Suing as Administrators of the Estate of Kipkereng Arap Koech - Deceased) v Kipkurere & another", Case Analysis (2023). Environment & Land Case 626 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21370/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.