Mutungi & 6 others v VIL Limited; Kaumbuthu t/a Mwenda Kaumbutu & Co Adovates & 4 others (Contemnor) (Cause 225 of 2017) [2023] KEELRC 569 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the supporting affidavit was incurably defective for non-disclosure of authority
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
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.
Whether the 1st Contemnor/Respondent (advocate) was in contempt of the attachment orders
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
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.
Whether the 3rd and 4th Contemnors/Respondents were in contempt
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
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.
Legal principles established
#- 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
#- 1.The application is dismissed
- 2.No orders on costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.