In re Estate of Simeon Kipkoech Ngetich (Deceased) - Abraham Kiprotich Kogo & 6 Others v Tomtilla Kaptich Ngetich
The bottom line
#To successfully prove contempt of court in Kenya, you must demonstrate deliberate disobedience using strong, verifiable evidence, not just rumors.
What this practically means
#Executive summary
#Key legal issues
#Applicable law for contempt after the Contempt of Court Act, 2016 was declared unconstitutional
The pre-Act law applies, as guided by Section 5 of the Judicature Act, giving the High Court the same contempt powers as the High Court of Justice in England
The Contempt of Court Act, 2016 was declared invalid on 9 November 2018 for lack of public participation under Articles 10 and 118(b) of the Constitution in the Kenya Human Rights Commission case. The application, though expressed under that Act, therefore fell to be governed by Section 5 of the Judicature Act, which preserves the English contempt powers.
Whether the respondent was properly served with and had knowledge of the order
Yes - the order was extracted, bore a penal notice, and was served on the respondent and her advocate on 28 May 2019, as confirmed by an Affidavit of Service
The Affidavit of Service sworn by Jared Kipyegon Rutto, Advocate, confirmed service on the respondent on 28 May 2019 in the presence of the area assistant chief, and on her advocate the same date. The order carried a penal notice. The first two elements of contempt were therefore established.
Whether disobedience of the order was proved to the requisite standard
No - the allegations of denied access and destruction of property were denied and were supported only by hearsay, without first-hand evidence from the workers or the 6th applicant
The 1st applicant deposed that workers sent on 13 June 2019 were denied access, but the workers were not named and gave no evidence. Allegations concerning the 6th applicant's sugar cane were deposed by the 1st applicant, not Felix himself. No police abstract or letter supported claims of reports to the chief or police. The burden at the quasi-criminal standard was not discharged.
Legal principles established
#- The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
- Elements to prove contempt: a clear and unambiguous binding order, notice or knowledge of its terms, and deliberate disobedience
- Knowledge of an order may supersede personal service where the contemnor was represented when the order was pronounced
Court orders
#- 1.The Notice of Motion dated 18 July 2019 seeking contempt orders is dismissed
- 2.Costs of the application to be costs in the cause
- 3.The order of 14 May 2019 (status quo) is confirmed and remains in force pending hearing and determination of the application dated 23 November 2018
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 5 of the Judicature Act (contempt powers of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Simeon Kipkoech Ngetich (Deceased) - Abraham Kiprotich Kogo & 6 Others v Tomtilla Kaptich Ngetich", Case Analysis (2020). Not stated in the judgment (Succession Cause - application for revocation of grant pending). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.