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High CourtPartially AllowedApplication dated 18th December 2018 in Succession Cause (grant issued 4th May 2016)· [2020] KEHC 9651 (KLR)

Teresia Wanjiku Guchu v Ruth Wanjiru Guchu & John Maina

High Court of Kenya
7 May 2020
AMA.O. Muchelule
1,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Ignoring a court order can lead to contempt charges, even if you claim you weren't personally served.

What this practically means

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Executive summary

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Stephen Guchu Churu died intestate on 8th December 2015 and a grant of letters of administration intestate issued to his widow, Ruth Wanjiru Guchu, on 4th May 2016. Teresia Wanjiku Guchu, claiming to head a second house undisclosed in the petition, applied for revocation of the grant, and on 12th July 2017 the court ordered preservation of the estate pending that application. The applicant then sought contempt findings against the respondent and John Maina, chairman of Githunguri Constituency Ranching Company Limited, alleging they caused Ruiru West Block 1 (Githunguri) Plot No. 1529 to be registered in the respondent's name and transferred to a third party. Applying Duncan Manuel Murigi v Kenya Railways Corporation and Wildlife Lodges Ltd v County Council of Narok, the court held contempt proceedings are criminal in nature, requiring proof above balance of probabilities but below beyond reasonable doubt, and certainty of service. Service on John Maina was not proved: the affidavit of service failed to comply with Order 5 rule 15(1) on identification and location, so the claim against him failed. The respondent, however, was held aware of the order made in the presence of her counsel; her arguments on personal service and penal notice were raised only in submissions, which are not evidence. Both parties had listed the plot as an estate asset, and her unilateral transfer after the deceased's death breached the preservation order and constituted intermeddling. She was found in contempt and ordered to appear on 1st July 2020 to show cause why she should not be punished, and to pay the costs of the application.

Key legal issues

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Standard of proof in contempt proceedings

Holding

Contempt is criminal in nature; proof must exceed balance of probabilities but fall short of beyond reasonable doubt, and the court must be certain the contemnor was served

Reasoning

The court applied Duncan Manuel Murigi v Kenya Railways Corporation and Wildlife Lodges Ltd v County Council of Narok, holding that because a contemnor stands to lose liberty, service of the order must be established to the heightened standard before any committal.

p. 2
02

Service of the order on John Maina

Holding

Service not proved; the affidavit of service failed to show how the process server identified Maina or knew the company's location, as required by Order 5 rule 15(1)

Reasoning

The process server did not state he knew Maina previously or who identified him, and did not swear to the rooms occupied by the company. Maina's uncontroverted replying affidavit described a signing/stamping procedure inconsistent with the alleged service.

p. 2
03

Contempt by the respondent

Holding

The respondent, aware of the order made in the presence of her counsel, transferred estate property to a third party and was found in contempt; also intermeddled with the estate

Reasoning

The order was made in the presence of her advocate and she never claimed ignorance in her replying affidavit; submissions about lack of personal service and penal notice were not evidence. Both parties had listed the plot as an estate asset, so her unilateral transfer breached the preservation order and amounted to intermeddling after the deceased's death.

p. 2

Legal principles established

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  • Contempt proceedings are criminal in nature and the standard of proof is higher than balance of probabilities but below proof beyond all reasonable doubt
  • An order made in the presence of a party's counsel need not be personally served and must be obeyed
  • Written submissions are not evidence

Court orders

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  1. 1.The respondent is ordered to appear in court on 1st July 2020 to show cause why she should not be punished as required by the law
  2. 2.The respondent to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 15(1)

Cases cited (2)

  • Duncan Manuel Murigi –v- Kenya Railways Corporation
    [2008] eKLR

    Contempt proceedings are criminal in nature with a higher standard of proof than civil cases

  • Wildlife Lodges Ltd –v- County Council of Narok & Another
    [2005] 2 EA 344

    Standard of proof in contempt is above balance of probabilities but below beyond reasonable doubt

Jurisdiction invoked
Inherent contempt jurisdiction of the High Court in a succession cause; Order 5 rule 15(1) of the Civil Procedure Rules on service

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, "Teresia Wanjiku Guchu v Ruth Wanjiru Guchu & John Maina", Case Analysis (2020). Application dated 18th December 2018 in Succession Cause (grant issued 4th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9651/eng@2020-05-07

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