[2019] KEHC 11027 (KLR)
The court found that the respondent was aware of the order requiring the joint collection and deposit of rental income from the deceased's property, as the order was delivered in the presence of her counsel and subsequently served on her advocates. The respondent failed to comply by not availing herself to open the...
Source-derived case information.
- Citation
- [2019] KEHC 11027 (KLR)
- Parties
- Applicant: Gladys Wambui Kago; Respondent: Mercy Nduta Kago
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2859 of 2012
- Procedural Posture
- Succession Cause / Ruling on Contempt Application
- Outcome
- Respondent found guilty of contempt of court; directed to appear to show cause why she should not be punished.
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Administration of Estates, Contempt of Court, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Wambui Kago
Applicant
Mercy Nduta Kago
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondent was aware of and willfully disobeyed the court order of 14th September 2017 regarding the collection and management of rental income from the deceased's property.
- 2 Whether the respondent should be cited and punished for contempt of court for failing to comply with the said order.
Ratio Decidendi
The court found that the respondent was aware of the order requiring the joint collection and deposit of rental income from the deceased's property, as the order was delivered in the presence of her counsel and subsequently served on her advocates. The respondent failed to comply by not availing herself to open the joint account and continued to collect and use the rent, providing no explanation for her actions. The court held that this conduct amounted to willful disobedience of a lawful court order, undermining the authority of the court. The applicant met the requisite standard of proof for contempt, and the respondent was found guilty of contempt of court.
Court Disposition
Respondent found guilty of contempt of court; directed to appear to show cause why she should not be punished.
Orders
- The respondent is found guilty of contempt of court.
- The respondent is directed to appear on 11th March 2019 to show cause why she should not be punished in accordance with the law.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2859 OF 2012
IN THE MATTER OF THE ESTATE OF DANIEL MACHARIA ALIAS DANIEL
KAGO ALIAS KAGO MUKORE ALIAS DANIEL KAGO MUKORE (DECEASED)
GLADYS WAMBUI KAGO.........................................APPLICANT
VERSUS
MERCY NDUTA KAGO..........................................RESPONDENT
RULING
1. The deceased Daniel Macharia alias Daniel Kago alias Kago Mukore alias Daniel Kago Mukore died intestate on 27th September 2012. On 6th August 2012 a joint grant of letters of administration intestate was issued to Gladys Wambui Kago (the applicant) and Esther Wanjiku Kago. On 14th September 2017 an order was made by this court for the rents from tenants occupying the deceased’s Githunguri/ Kanjai/1439 be collected by the administrators and deposited into an account to be jointly opened and operated by them and the respondent Mercy Nduta Kago. Prior to the order the rent was being collected exclusively by the respondent.
2. On 18th December 2017 the applicant brought the present application asking that the respondent be cited for contempt and be punished for a period of 6 months for having disobeyed the order given on 14th September 2017. Her case was that despite the respondent having been aware of the order, and having been served with the same, she had failed to avail herself in the bank to sign account opening documents, and had instead continued to collect and spend the rent from the tenants in the premises. It was submitted on behalf of the applicant by her advocate that the actions of the respondent were in disobedience of the court order, were disrespectful of the court process, and were in contempt of the court order.
3. The application was served but did not elicit any response.
4. The ruling of 14th September 2017 was delivered in the presence of counsel for the respondent. It was deponed that the orders were extracted (“GW1”) and, together with a forwarding letter (“GW2”), served on the respondent’s advocates on 24th November 2017. No reason has been given why the respondent has not availed herself to open the joint account, and why she continues to collect and use rent that belongs to the estate and which should be protected until the estate has been shared. The responsibility to manage the estate belongs to the administrators, one of whom is the applicant.
5. The respondent had unqualified obligation to obey the order, which I find, she was aware of. She did not obey. The disobedience, I find, was wilful. The disobedience has undermined the authority of this court.
6. I am aware that contempt of court is quasi-criminal. It is an offence that may be punished by committal. The standard of proof is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt (Mutitika and Others –v- Baharini Farm Limited 91982 – 88] 1KAR 863).The applicant has met the standard in the application.
7. I find the respondent guilty of contempt of court. She is directed to appear on 11th March 2019to show cause why she should not be punished in accordance with the law.
DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 11TH day of FEBRUARY 2019.
ALI-ARONI
JUDGE