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Court of AppealPartially AllowedCivil Appeal No. 33 of 2012 (notice of motion dated 4th December 2013)· [2015] KECA 945 (KLR)

Shimmers Plaza Limited v National Bank of Kenya Limited

Court of Appeal
18 February 2015
WKW. KaranjaJMJ. W. MweraPhilomena Mbete MwiluP. M. Mwilu
5,529 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that ignoring a court order you know about is contempt, even without personal service.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Mwera and Mwilu, JJ.A) on a notice of motion dated 4th December 2013 seeking committal for contempt arising from Civil Appeal No. 33 of 2012, in which Shimmers Plaza Limited had appealed against Kimondo J's refusal of an injunction restraining National Bank of Kenya from selling L.R. 55525. On 26th September 2013 the Court ordered maintenance of status quo pending judgment, but the bank transferred the property to Cape Suppliers Limited on 15th October 2013, with the discharge of charge registered on 30th October 2013. The applicant sought six months' civil jail against the bank's managing director, Munir Sheikh Ahmed; the claim against advocate Clifford Rachuonyo was withdrawn and allowed. The court identified three issues: service of the order, its clarity, and compliance. Applying Section 5 of the Judicature Act and Part 81 of the English Civil Procedure (Amendment No. 2) Rules 2012, it held that personal service is not mandatory where the party had notice, and that knowledge of an order through counsel present in court when it was made suffices, the respondent then bearing an evidential burden on wilfulness. The status quo order was held clear and unambiguous, and the transfer constituted contempt. The court found Munir Sheikh Ahmed in contempt on behalf of the bank, allowed prayer 1 with costs to the applicant, and reserved sentence pending mitigation. It deprecated the growing disregard of court orders and affirmed that obedience to court orders is mandatory, not optional.

Key legal issues

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01

Service of the order alleged to have been disobeyed

Holding

Personal service is not mandatory; knowledge of the order, including knowledge imputed through counsel present in court when it was made, suffices

Reasoning

The court traced Rule 81 of the English Civil Procedure (Amendment No. 2) Rules 2012, which permits dispensation with personal service where the person had notice, including by being present when the order was made. It held that an advocate appearing for a party must be presumed to report orders to the client, citing Wambora, Criticos, Bhatnager and US v Revie. The respondent's counsel was in court when the status quo order was made, so notice was established.

p. 7
02

Ambiguity of the status quo order

Holding

The order was clear and unambiguous; status quo means the existing state of things at the time of the order, freezing all transactions pending further orders

Reasoning

The court defined status quo as the present situation at the time the order is made, incapable of relating to past or future events. No party sought clarification when the order was made, so all were presumed to understand it. That a sale agreement predated the order did not excuse the subsequent transfer; once the order issued, everything had to wait.

p. 8
03

Whether the respondent was in contempt

Holding

Yes; the managing director, on behalf of the bank, was in contempt for transferring the suit property during the pendency of the status quo order

Reasoning

The order was made in the presence of the respondent's counsel, who must be presumed to have informed the client. The transfer and registration of discharge occurred before judgment despite the order. The court deprecated the trend of disobeying court orders and held obedience mandatory, not optional.

p. 10
04

Standard of proof in contempt

Holding

Notice must be proved beyond reasonable doubt given the possible deprivation of liberty

Reasoning

Relying on Ex parte Langley, the court affirmed that because contempt may affect liberty, those asserting notice must prove it beyond reasonable doubt, though knowledge may be inferred circumstantially from proved facts.

p. 7

Legal principles established

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  • Knowledge of a court order suffices for contempt; personal service is not mandatory where the party was represented in court when the order was made
  • Once notice of an order is proved, the respondent bears an evidential burden on wilfulness and mala fides
  • Every person against whom a court order is made must obey it unless and until it is discharged, even if believed irregular or void
  • Leave of the court is no longer necessary before instituting contempt proceedings under the applicable English Civil Procedure (Amendment No. 2) Rules, 2012

Court orders

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  1. 1.A finding that Mr Munir Sheikh Ahmed, managing director and chief executive officer of the respondent, is in contempt of the court order dated 26th September 2013
  2. 2.Prayer 1 of the notice of motion dated 4th December 2013 allowed
  3. 3.Costs of the application to the applicant
  4. 4.Sentence reserved until the contemnor is heard on mitigation
On appeal from
High Court of Kenya at Nairobi
HCCC No. 895 of 2009
Jurisdiction invoked
Section 5 of the Judicature Act; Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shimmers Plaza Limited v National Bank of Kenya Limited", Case Analysis (2015). Civil Appeal No. 33 of 2012 (notice of motion dated 4th December 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/945/eng@2015-02-18

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