[2022] KEHC 12174 (KLR)
The court found the respondent's explanation for non-compliance with the court order to be implausible and not candid, amounting to deliberate disobedience. Consequently, the respondent was convicted of contempt and fined Kshs 10,000, with a default sentence of fourteen days' imprisonment. On the issue of costs, the...
Source-derived case information.
- Citation
- [2022] KEHC 12174 (KLR)
- Parties
- Appellant: Wilson Luyali Alumasa; Appellant: Rodgers Mangala Shivembe; Appellant: Emmanuel Khamasi Saballa; Appellant: Renson Saballa Shibembe; Appellant: Allan Saballa Shibembe; Respondent: Carolyne Shiyombe Shibembe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E027 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Contempt and Costs After Appeal Determination
- Outcome
- Respondent convicted of contempt of court and fined; no costs awarded to either party.
- Judges
- PJO Otieno
- Legal Topics
- Contempt of Court, Costs Award, Family Disputes, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilson Luyali Alumasa
Appellant
Rodgers Mangala Shivembe
Appellant
Emmanuel Khamasi Saballa
Appellant
Renson Saballa Shibembe
Appellant
Allan Saballa Shibembe
Appellant
Carolyne Shiyombe Shibembe
Respondent
Procedural Posture
Civil Appeal / Ruling on Contempt and Costs After Appeal Determination
Legal Issues
- 1 Whether the respondent was in contempt of court for failing to comply with an order to present the subject in court.
- 2 Whether the respondent's explanation for non-compliance was sufficient to avoid sanction.
- 3 Whether costs should be awarded following the conclusion of the appeal by consent without express provision for costs.
Ratio Decidendi
The court found the respondent's explanation for non-compliance with the court order to be implausible and not candid, amounting to deliberate disobedience. Consequently, the respondent was convicted of contempt and fined Kshs 10,000, with a default sentence of fourteen days' imprisonment. On the issue of costs, the court held that since the appeal was concluded by consent without an express award of costs, no costs were due to the appellants. The court further emphasized the need to promote reconciliation in family disputes and directed that each party bear their own costs.
Court Disposition
Respondent convicted of contempt of court and fined; no costs awarded to either party.
Orders
- The respondent is convicted of contempt of court for disobedience of a court order.
- The respondent is fined Kshs 10,000 or, in default, to serve fourteen (14) days in jail.
Full Case Text
Judgment text and source record
30 paragraphs
Alumasa & 4 others v Shibembe (Civil Appeal E027 of 2021) [2022] KEHC 12174 (KLR) (12 May 2022) (Ruling)
Neutral citation: [2022] KEHC 12174 (KLR)
Republic of Kenya
In the High Court at Kakamega
Civil Appeal E027 of 2021
PJO Otieno, J
May 12, 2022
Between
Wilson Luyali Alumasa
1st Appellant
Rodgers Mangala Shivembe
2nd Appellant
Emmanuel Khamasi Saballa
3rd Appellant
Renson Saballa Shibembe
4th Appellant
Allan Saballa Shibembe
5th Appellant
and
Carolyne Shiyombe Shibembe
Respondent
Ruling
1. I have listened to the respondent and her explanation why she did not comply with the orders compelling her to avail the Subject in court. I find the explanation implausible and not candid. I find her to have been in deliberate disobedience of the court order and deserves a punishment. For that, she is convicted for contempt.
2. However, taking into account the relationship between the parties and the uncontroverted assertion by therespondent of a medical condition, I do fine her to pay Kshs 10,000. 00 and in default serve fourteen (14) days in jail.
3. The respondent is reminded that court orders are not suggestions and that the mother, even if old, remains a human being whose wishes and choices must be respected.
4. On costs, the court gives regard to the fact that when the appeal was concluded by consent on the June 30, 2021, there was no award for costs. Where a prayer is made and not expressly granted, it is deemed dismissed. See section 7 explanation 5.
5. The proceedings after the order determining appeal have been consequential and incidental to the conclusion of the appeal. They must abide the determinate order.
6. By failure to award costs when the appeal prayed for such costs, the court declined to award the costs of the appeal to the appellants. No costs are therefore due for award thereafter.
7. In addition and more importantly, this is a family dispute which all, advocates and the court, ought to do everything to help the family regain their fractured relationship. On that basis I direct that each party shall bear own costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT, THIS 12TH DAY OF MAY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Majimbo for the 1st AppellantMr. Kamende and Mwinzi for the 2nd – 5th AppellantsMr. Athunga for the RespondentCourt Assistant: Kulubi