Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
KadhiDismissedNot stated in judgment· [2019] KEKC 22 (KLR)

IK v RMS [2019] KEKC 22 (KLR)

Kadhis' Court
3 May 2019
ISIshaq
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A father's bid to jail his ex-wife for denying child access failed because he could not prove the denial to the high standard contempt requires.

What this practically means

#

Executive summary

#
The applicant, IK, moved the Kadhis' Court by Notice of Motion under sections 5 and 8 of the Kadhis' Court Act and sections 3, 3A and 63(c) and (e) of the Civil Procedure Act, seeking committal of the respondent, RMS, to civil jail for contempt of custody orders issued on 3rd September 2018, or alternatively a review of those orders with custody reverting to him and the mother retaining visitation. He alleged that despite the orders granting him access during holidays and alternate weekends, the respondent refused him access. The respondent countered that the applicant never came to pick the minors, never communicated with her, and that she had even facilitated visits; she termed the application bad faith and urged dismissal with costs. The Kadhi framed two issues: whether the respondent was in contempt, and whether grounds for review existed. On contempt, the court applied the rule that court orders must be obeyed, but emphasized the elevated standard of proof in contempt proceedings - higher than the balance of probabilities, almost but not exactly beyond reasonable doubt - per Mutitika v Baharini Farm Limited as adopted by the Supreme Court in Republic v Ahmad Abolfathi Mohammed. The onus lay on the applicant, and the court was unconvinced he discharged it. On review, the court held review is a creature of statute under Section 80 of the Civil Procedure Act and Order 45, and the applicant relied on none of the statutory grounds; failure to enjoy the fruits of a judgment is not a ground for review. The application was dismissed with costs on 3rd May 2019.

Key legal issues

#
01

Contempt of court orders on access to minors

Holding

Contempt not proved to the requisite standard; the applicant failed to discharge the burden of showing willful defiance

Reasoning

The court applied the elevated standard of proof in contempt matters from Mutitika v Baharini Farm Limited as adopted by the Supreme Court, noting that committal affects liberty and must be a last resort. The onus lay on the applicant to show that despite attempts to access the minors, the respondent willfully refused access. The court was unconvinced this was proved.

p. 2
02

Whether review of the custody orders was available

Holding

Review refused; no statutory ground under Order 45 was invoked

Reasoning

Review is a creature of statute under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, with grounds of discovery of new evidence, error apparent on the face of the record, or sufficient reason. The applicant relied on none; his failure to enjoy the fruits of the judgment is not a ground for review.

p. 3

Legal principles established

#
  • Court orders must be obeyed; failure to comply renders any action in breach a nullity
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Review is a creature of statute and must be sought on the express grounds provided

Court orders

#
  1. 1.Application dismissed with costs
Jurisdiction invoked
Sections 5 and 8 of the Kadhis' Court Act and Sections 3, 3A and 63(c) and (e) of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "IK v RMS [2019] KEKC 22 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/22/eng@2019-05-03

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