Bernard M. Ngore v Cabinet Secretary, Ministry of Industrialization, Trade and Enterprise Development & another; Betty C. Maina & another (Alleged Contemnor) [2021] KEELRC 1228 (KLR)
The bottom line
#A Kenyan court dismissed a contempt case against two senior government officials because the applicant failed to prove they deliberately disobeyed a court order.
What this practically means
#Executive summary
#Key legal issues
#Elements and standard of proof for civil contempt
The applicant must prove the terms of the order, the respondent's knowledge of those terms, breach of the order, and deliberate conduct; the standard is higher than the civil standard but not the criminal standard
Relying on Mativo J. in Samuel M. N. Mweru & Others v National Land Commission and Katsuri Limited v Kapurchand Depar Shah, the court set out the four elements of civil contempt and held that willfulness and bad faith are normally inferred once the elements are proved, but can be rebutted on a balance of probabilities. Because contempt has penal consequences, the standard exceeds the ordinary civil standard.
Whether personal service of the orders was required
Personal service was not required; knowledge of the orders sufficed, and the Alleged Contemnors had such knowledge
Following Shimmers Plaza Limited v National Bank of Kenya Limited, the court held that notice of an order can be proved by any means that brought the order to the person's knowledge, including representation by counsel or being copied in correspondence. The 2nd Alleged Contemnor's own letter of 9th December 2020, copied to the Cabinet Secretary, demonstrated knowledge of the orders.
Whether the Alleged Contemnors wilfully disobeyed the orders
No wilful disobedience was established; the contempt application failed
The court found the 9th December 2020 letter was an attempt to hold off Board business when two persons claimed the Chairpersonship, not a breach of the orders. The photograph of the virtual meeting attendance list and physical attendance sheet did not show the Petitioner attempted to join and was excluded, and it was not denied that the Petitioner chaired the Board meeting of 28th January 2021.
Legal principles established
#- Four essential elements must be proved to establish civil contempt: clear and unambiguous terms of the order binding on the defendant, knowledge or notice of the terms, breach of the order, and deliberate conduct
- The standard of proof in contempt proceedings is higher than in ordinary civil cases but lower than the criminal standard of proof beyond reasonable doubt
- Personal service of a court order is no longer necessary to prove contempt; knowledge of the order suffices
- The power to commit an alleged contemnor must be exercised only on evidence beyond peradventure because a finding of guilt may lead to denial of liberty
Court orders
#- 1.The contempt application is dismissed
- 2.Costs of the application will abide the outcome of the petition
- Jurisdiction invoked
- Original contempt jurisdiction in a pending petition; the court referred to Article 159(2)(d) and Article 48 of the Constitution in delivering the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard M. Ngore v Cabinet Secretary, Ministry of Industrialization, Trade and Enterprise Development & another; Betty C. Maina & another (Alleged Contemnor) [2021] KEELRC 1228 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1228/eng@2021-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.