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ELRCDismissedCause No 225 of 2017· [2023] KEELRC 569 (KLR)

Mutungi & 6 others v VIL Limited; Kaumbuthu t/a Mwenda Kaumbutu & Co Adovates & 4 others (Contemnor) (Cause 225 of 2017) [2023] KEELRC 569 (KLR)

Employment and Labour Relations Court
2 March 2023
2,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Kisumu dismissed a contempt application because the respondents were not parties to the suit and were never served with the orders they allegedly breached.

What this practically means

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Executive summary

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The Claimants/Applicants moved the court by a motion dated 28th September 2021 seeking contempt findings against six individuals and five entities for disobeying attachment and restraining orders issued on 9th October 2017 and 28th December 2017. They sought security of Kshs. 15,000,000.00, lifting of the corporate veil of several entities, declarations of contempt and punishment, and costs. The 1st Contemnor, an advocate formerly on record, opposed, arguing the supporting affidavit was defective for want of disclosed authority, that he only had instructions to attach (not sell), and that a Claimant, Michael Kinyua Mutungi, entered an agreement with Sydney Pride (K) Limited to disassemble, haul and store the goods. The 3rd and 4th Contemnors denied knowledge of the orders. The court framed two issues: defectiveness of the affidavit and contempt. It found the affidavit not defective as it was sworn by the deponent in his own right. On contempt, the court applied the settled test requiring clear orders, knowledge, breach and deliberate conduct, citing Clarke v Chadburn, Kenya Tea Growers Association, Cecil Miller and Katsuri Limited. Although the 1st Contemnor witnessed an agreement contemplating sale of attached goods while only attachment orders existed, the court held the orders were not directed at him as he was not a party, and his conduct raised professional misconduct to be pursued elsewhere. The 3rd and 4th Respondents were never served and did not know the terms of the orders, so no deliberate disobedience was proved. The application was dismissed in its entirety with no orders on costs.

Key legal issues

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01

Whether the supporting affidavit was incurably defective for non-disclosure of authority

Holding

The affidavit was not defective because it was sworn by the deponent in his own right as a Claimant and was not intended to represent co-Claimants

Reasoning

Counsel for the Applicant clarified that the deponent did not purport to swear on behalf of co-Claimants but in his own right as a Claimant. That position was not controverted in the Contemnors' subsequent submissions. The court therefore found the affidavit, sworn solely in the deponent's own right, not defective.

p. 4
02

Whether the 1st Contemnor/Respondent (advocate) was in contempt of the attachment orders

Holding

No contempt established; the orders were not directed at him as he was not a party to the suit, and his conduct raises professional misconduct whose remedy lies elsewhere

Reasoning

Although the 1st Contemnor witnessed an agreement contemplating sale of attached goods while orders only permitted attachment, and the sale occurred while he still held instructions, the court noted the attachment orders were directed at the parties to the suit and not at him, who was not a party. The chronology disclosed a new cause of action amounting to professional misconduct, for which the remedy lies elsewhere.

p. 5
03

Whether the 3rd and 4th Contemnors/Respondents were in contempt

Holding

They were not guilty of contempt since they were not party to the suit when the orders issued and were never served with the orders

Reasoning

The Applicant was cross-examined and admitted the 3rd and 4th Respondents were not subject to the orders and were not parties when the orders issued. Without service or knowledge of the terms of the orders, deliberate disobedience could not be established, and the applicant failed to discharge the burden of proof set out in Katsuri Limited v Kapurchand Depor Shah.

p. 6

Legal principles established

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  • For one to be held guilty of contempt, the orders must be clear and unambiguous, the defendant must have proper knowledge of the terms of the order, must have acted in breach, and the conduct must be deliberate
  • In civil contempt proceedings the applicant must prove the terms of the order, the respondent's knowledge of the terms, and failure by the respondent to comply

Court orders

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  1. 1.The application is dismissed
  2. 2.No orders on costs

Authorities

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Legislation

  • Judicature ActSections 3 & 5
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 22 Rules 1 & 2, Order 51 Rule 1, Order 40 Rule 3(1)

Cases cited (5)

  • Cecil Miller v Jackson Njeru & Another
    (2017) eKLR
  • Kenya Tea Growers Association Vs Francis Atwoli and 5 Others
    [2012] eKLR
  • Clarke and Others Vs Chadburn & Others
    [1985] 1 All E.R (PC), 211
  • Katsuri Limited v Kapurchand Depor Shah
    (2016) eKLR
  • Kristen Carla Burchell v Barry Grant Burchell
    Eastern Cape Division Case No. 363 of 2005
Jurisdiction invoked
Contempt of court jurisdiction under Sections 3 & 5 of the Judicature Act and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 22 Rules 1 & 2, Order 51 Rule 1 and Order 40 Rule 3(1) of the Civil Procedure Rules

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, "Mutungi & 6 others v VIL Limited; Kaumbuthu t/a Mwenda Kaumbutu & Co Adovates & 4 others (Contemnor) (Cause 225 of 2017) [2023] KEELRC 569 (KLR)", Case Analysis (2023). Cause No 225 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/569/eng@2023-03-02

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