Jimmy Charo Mapema v Henry Amani Kalume & 1 other

deem fit and the officer commanding Mtwapa police station and the sub county commander Kilifi to enforce the court orders. 5. Costs may be in the course (sic). 2. The Applicant is a son of the deceased herein Esther Nzingo Kalume. It is the Applicant’s case that this Court issued orders on 15.11.24 preserving the estate of the deceased and restraining the Respondents from using the grant issued to them on 7.11.24 in any manner whatsoever pending hearing and determination of the application dated 13.11.24; that despite the said orders which were duly served upon the Respondents, they have continued to receive money and mismanage the estate using the grant; that after the Court issued the said orders, the Respondents obtained estate moneys and started constructing houses, kiosks and even drilling boreholes on the estate properties, thus damaging the outlook; that that the 1st respondent is s suspect of a marriage certificate issued in the name of one Julius Odhiambo and is unfit to be administrator of the estate of the deceased; that it is necessary for the Court to issue urgent orders that will preserve the estate of the deceased from further wastage; that unless the orders are granted, the Applicant will suffer irreparable damage and loss and the estate properties will be in danger of being disposed of. 3. The orders in question were issued pursuant to a summons dated 13.11.24 in which the Applicant seeks inter alia revocation of the grant. 4. The Application is opposed by the Respondents vide a replying affidavit sworn by the 1st Respondent on 16.12.24. The Respondents denied the Applicant’s allegations that they have obtained, embezzled and mismanaged moneys of the estate of the deceased. They also denied that they are putting up structures and drilling a borehole on the estate properties. Further that the exhibited photographs are of the matrimonial home in which the 1st Respondent and deceased resided until her demise. The 1st Respondent stated that he constructed the matrimonial house and the perimeter wall. Further that the mabati structure and borehole were in existence prior to the orders in question and the borehole was and remains the only source of water for the matrimonial home where he continues to reside. Additionally, that the equipment at the gate is meant for repairing and painting the same which he periodically does as need arises. He further stated that the Applicant never complained when he built the house and the perimeter wall when the deceased was alive. The Applicant’s complaint after the demise of the deceased and the multiple applications filed in Court betrays his mischievous tendencies and hate for the 1st Respondent and are intended to lock him out of the estate of his wife. He urged that the Application which contains baseless allegations be dismissed with costs. 5. In a supplementary affidavit, sworn on 24.12.24 the Applicant denied the averments in the replying affidavit, terming them lies. He averred that the house in question belonged to his grandmother and that the 1st Respondent was a family servant during the lifetime of his mother and grandmother. Further that the 1st Respondent took and embezzled the sum of Kshs. 1,000,000/= paid to his advocates as part of the purchase price by a tenant one Lawrence Katite. He further stated that it was after swearing his replying affidavit that the 1st Respondent rushed to remove some of the structures at the gate. 6. Parties filed their written submissions which I have duly considered. The issue for determination is whether the Respondents are in contempt of the orders of 15.11.24 and if so, what punishment should be meted against them. 7. The jurisdiction of this Court to punish for contempt is found in Section 5 of the Judicature Act which provides: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/405/eng@2026-01-23 2

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(1) 8. The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts. A party who seeks orders of contempt must bring his application within the threshold required. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 others [2020] eKLR Mativo, J. restated what an applicant was required to prove in contempt proceedings as follows: It is an established principle of law that[45] in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.[46] Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand[47] who succinctly stated:There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (b) the defendant had knowledge of or proper notice of the terms of the order; (c) the defendant has acted in breach of the terms of the order; and (d) the defendant's conduct was deliberate. 9. A party against whom contempt orders are sought must be aware of the orders. In the instant case, the Respondents were aware of the Court orders of 15.11.24. The terms of the order and its objects were very clear and the Respondents had proper notice of the same. This is admitted in the replying affidavit sworn by the 1st Respondent. 10. I now turn to whether the Respondents deliberately acted in breach of the terms of the Court orders. The Applicant’s claim is that the Respondents have, despite the orders, continued to receive money and mismanage the estate using the grant. Further that the Respondents obtained started constructing houses, kiosks and even drilling boreholes on the estate properties using estate moneys. This claim has been denied by the 1st Respondent. 11. In his affidavits, the Applicant has not indicated the sums received by the Respondents and from whom. Further, he has exhibited 3 mpesa payment receipts each of Kshs. 17,000/= paid to the 1st Respondent on 12.10.24, 12.11.24 and 11.12.24 respectively. He has however not stated who made the payment and for what purpose. He simply stated that this is estate money. The Applicant further claimed that the 1st Respondent took and embezzled the sum of Kshs. 1,000,000/= paid to his advocates as part of the purchase price by a tenant one Lawrence Katite. He has however not indicated the specific property in respect of which the alleged purchase price was paid, nor the date the alleged payment was made. Additionally, he has not given any proof of the alleged payment to the advocates nor the name of the advocates nor indeed when the 1st Respondent took the money. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/405/eng@2026-01-23 3

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12. The Applicant further exhibited 3 receipts for rent payment. The first 2 receipts are from one John Micheni both dated 21.7.24 for the months of May and June and the third is from one Mrume dated 11.8.24 for the month of August. These payments were made to the 1st Respondent before the orders of 15.11.24 were issued. He cannot therefore be said to have disobeyed orders that were not in existence when he received the money. 13. The standard of proof in contempt proceedings is well established and though it is higher than proof on a balance of probabilities, it is not proof beyond reasonable doubt as that remains in the realm of criminal cases. This is as was held in the case of Mutitika v Baharini Farm Limited [1985] KLR 229, 234, where the Court of Appeal stated: In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature. 14. In order to deserve the orders sought, the Applicant was required to lay before this Court proof beyond a balance of probabilities that the Respondents disobeyed the court orders issued on 15.11.24. From the material placed before the court, the Applicant did not discharge the burden placed upon him. 15. In view of the foregoing, I do not consider that the Applicant has made out a case to warrant the grant of the orders sought. Accordingly, the Application dated 29.11.24 is hereby dismissed. No orders as to costs. DATED, SIGNED AND DELIVERED IN MALINDI THIS 23RD DAY OF JANUARY 2026 M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/405/eng@2026-01-23 4

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