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ELCDismissedNot stated in judgment (application dated 27th September 2013 within a pending suit)· [2013] KEELC 14 (KLR)

Raphael Mulewa Mkare & 515 others v Agricultural Development Corporation [2013] KEELC 14 (KLR)

High Court of Kenya
17 December 2013
OAO. A. Angote
2,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Malindi refused to jail 500-plus farmers for contempt because the applicant could not prove they actually knew about the court order they allegedly broke.

What this practically means

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Executive summary

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The Defendant in a pending land suit involving over 500 Plaintiffs of the Kisiwani Farmers Association applied on 27th September 2013 for warrants of arrest against named Plaintiffs, their leaders and their advocate, Omagwa Angima, alleging contempt of an order of 8th June 2012 preserving the status quo and restraining the Plaintiffs from encroaching further on the Defendant's Kisiwani farm or erecting new structures. The Defendant alleged that the Plaintiffs had demarcated and sub-divided the land through the Association, expanded their cultivation from about 300 to over 1282 acres, built dwellings, threatened employees and injured animals. The Respondents denied disobeying the order, asserting they had not moved an inch, and contended they were never served with or informed of the order; Hosea Chome denied being a party to the suit. The court, Angote J, framed a single issue: whether the alleged contemnors had disobeyed the order of 8th June 2012. Applying Mutitika v Baharini Farm, Wildlife Lodges and Basil Criticos, the court held contempt to be quasi-criminal, requiring precise definition of the breach and proof to a standard above balance of probabilities, and requiring proof of the contemnor's knowledge of the order, personal service being the general rule though knowledge supersedes it. Finding no evidence of service or knowledge, no sufficiently particularised acts of breach, and unhelpful photographs that did not establish the status quo, the court dismissed the application with costs, referred the animal-injury allegations to the police, and directed that the main suit be fixed for hearing within 90 days, deploring its pendency since 2010.

Key legal issues

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01

Whether the Plaintiffs and their advocate disobeyed the order of 8th June 2012

Holding

The application for contempt was dismissed; there was no proof of service or knowledge of the order and no proof of acts constituting breach

Reasoning

The court applied the principle that contempt is quasi-criminal and must be proved to an intermediate standard. The applicant bore the burden of proving that the alleged contemnors knew of the order; no letter or service was shown to have informed the respondents' advocate. Even assuming knowledge, the applicant failed to plead with particularity what acts constituted breach, and the photographs did not establish the status quo as at 8th June 2012 or subsequent encroachment.

p. 4
02

Whether the alleged injury to animals amounted to contempt

Holding

Alleged acts of injuring animals were criminal in nature and should be pursued by the police, not by contempt proceedings

Reasoning

The court distinguished between disobedience of civil orders and criminal conduct. Since the alleged injury to the applicant's animals did not constitute breach of the status quo order but an independent offence, the proper forum was a criminal complaint to the police rather than committal proceedings.

p. 5

Legal principles established

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  • A person who, knowing of an injunction or stay order, wilfully breaches it is liable to be committed for contempt
  • Contempt is quasi-criminal and the breach must be proved to a standard higher than balance of probabilities but below beyond reasonable doubt
  • As a general rule, a court order requiring a person to do or abstain from an act cannot be enforced unless personally served, though knowledge of the order may supersede personal service
  • Knowledge of the court order supersedes personal service; where a party acts with knowledge of an order, strict proof of personal service is unnecessary
  • The burden lies on the applicant in contempt to prove the alleged contemnor's knowledge of the order and to specify the contempt with sufficient particularity

Court orders

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  1. 1.The Defendant's/Applicant's Application dated 27th September 2013 dismissed with costs
  2. 2.The matter to be fixed for hearing within the next 90 days from the date of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 3

Cases cited (4)

  • Mutitika Vs Baharini Farm
    (1982-88) 1 KAR 863
  • Johnson Vs Grant
    1923 SC 789
  • Wildlife Lodges Ltd Vs County Council of Nairobi & Another
    (2005) 2 EA 344
  • Basil Criticos Vs Attorney General & 8 others
    (2012) EKLR
Jurisdiction invoked
Inherent powers of the High Court and Order 40 Rule 3 of the Civil Procedure Rules (contempt/enforcement of injunctive orders)

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, "Raphael Mulewa Mkare & 515 others v Agricultural Development Corporation [2013] KEELC 14 (KLR)", Case Analysis (2013). Not stated in judgment (application dated 27th September 2013 within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/14/eng@2013-12-17

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