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High CourtAllowed

Jane Momanyi (Administratrix of the Estate of Pauline Momanyi Bitengo) v Defendant (Contempt of Court Application)

High Court of Kenya
27 November 2009
AMA.O. Muchelule
737 words in judgment
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The bottom line

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Kenya's High Court confirmed that anyone who knowingly ignores or helps someone ignore a court injunction can be arrested and punished for contempt.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of Pauline Momanyi Bitengo, registered proprietor of land parcel West Mugirango/Bomanono/171, sued for trespass committed from 22/11/2007 and obtained interim and later confirmed injunctions restraining the defendant from encroaching on, trespassing into, or cutting trees on the land. The orders, accompanied by a Penal Notice, were served on the respondent and on Nyangeri Mwamba, to whom the respondent had allegedly leased the land. Despite service, the applicant deponed that the two continued to till the land and cut trees. She filed a Notice of Motion under Order 39 rule 2A(2) of the Civil Procedure Rules and sections 3, 3A and 63(e) of the Civil Procedure Act seeking committal to civil jail for up to six months or attachment of property for contempt. The application was undefended despite service. Muchelule J found that the injunction was clear and unambiguous, that both men were aware of it, and that uncontroverted affidavit evidence established continued breach to the heightened standard required in contempt proceedings. Relying on Mutitika v Baharini Farm Ltd, the court held that a non-party who knowingly aids a breach of an injunction is liable to committal. The application was allowed with costs and warrants of arrest were issued against the respondent and Nyangeri Mwamba to be brought to court to be punished.

Key legal issues

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01

Disobedience of injunction by the respondent

Holding

Contempt proved to the required standard

Reasoning

The injunction was in clear and unambiguous terms, the respondent was present in court when it issued and was later served with the order and Penal Notice. Affidavit evidence of continued trespass, tilling and tree-cutting was uncontroverted, constituting blatant disobedience.

p. 2
02

Liability of a non-party (Nyangeri Mwamba)

Holding

Mwamba, though not a defendant, knowingly aided the breach and is liable to committal

Reasoning

Citing Mutitika v Baharini Farm Ltd, the court held that a person aware of an injunction who abets or assists its breach may be committed for contempt. Mwamba was served with the order and Penal Notice, had leased the land from the respondent, and assisted the disobedience.

p. 2

Legal principles established

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  • A person who, knowing of an injunction, aids or assists in its breach by the person restrained may be committed for contempt even if not a party to the suit
  • Proof of contempt requires a standard above balance of probabilities

Court orders

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  1. 1.Application allowed with costs
  2. 2.Warrant of arrest issued against the respondent and Nyangeri Mwamba to be brought to court to be punished for contempt
Jurisdiction invoked
Order 39 rule 2A(2) of the Civil Procedure Rules and sections 3, 3A and 63(e) of the Civil Procedure Act

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, "Jane Momanyi (Administratrix of the Estate of Pauline Momanyi Bitengo) v Defendant (Contempt of Court Application)", Case Analysis (2009). . Source:

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