[2021] KEHC 9505 (KLR)
The court found that the applicant failed to provide sufficient evidence to demonstrate that the respondent willfully and deliberately disobeyed the court order of 05/04/2019. The allegations against the respondent were generalized, and no proof was annexed to show any specific act of interference with the estate or...
Source-derived case information.
- Citation
- [2021] KEHC 9505 (KLR)
- Parties
- Applicant: Geoffrey Kipkorir Cheruiyot; Respondent: Viola Maina (also referred to as Viola Chebet)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 18 of 2007
- Procedural Posture
- Succession Cause / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- AN Ongeri
- Legal Topics
- Contempt of Court, Proof Standard in Contempt, Estate Administration, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Kipkorir Cheruiyot
Applicant
Viola Maina (also referred to as Viola Chebet)
Respondent
Procedural Posture
Succession Cause / Ruling on Contempt Application
Legal Issues
- 1 Whether the respondent willfully disobeyed the court order issued on 05/04/2019 regarding the status quo of the estate parcels.
- 2 Whether the applicant has met the requisite standard of proof for contempt of court.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence to demonstrate that the respondent willfully and deliberately disobeyed the court order of 05/04/2019. The allegations against the respondent were generalized, and no proof was annexed to show any specific act of interference with the estate or eviction of beneficiaries. Given the high standard of proof required in contempt proceedings, especially where committal to jail is sought, the court held that the threshold was not met. The application for contempt was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 14/05/2019 is dismissed for lack of merit.
- The parties are directed to appear in court within 30 days for purposes of taking directions.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KERICHO
SUCCESSION CAUSE NO.18 OF 2007
IN THE MATTER OF THE ESTATE OF THE LATE KIPLANGAT MAINA (DECEASED)
GEOFFREY KIPKORIR..........................PETITIONER/APPLICANT
VERSUS
VIOLA MAINA...........................................................RESPONDENT
RULING
1. The Application coming for consideration in this ruling is dated 14/05/2019 seeking for orders that the Respondent VIOLA MAINA be committed to civil jail for a period not exceeding six (6) months for disobeying courts issued on 05/04/2019. The court orders issued on the said date was to the effect that the status quo of the parcels of land, to which the parties to this application are beneficiaries, be maintained.
2. The Application is based on the grounds on the face of it and supported by the Affidavit of the Applicant GEOFFREY KIPKORIR CHERUIYOTin which he has stated that the order was served upon the Respondent but she has continued to interfere with the said land.
3. The Respondent VIOLA CHEBET filed a Replying Affidavit dated 19/11/2019 in which she denied the averments in the Supporting Affidavit. She further stated that the orders issued by the court was not clear, and that the order did not clearly state what was or was not expected of her in her dealings with the parcels of land.
4. The parties filed submissions which I have duly considered. I find that it is not clear how the Respondent has disobeyed orders issued on 05/04/2019 since there is no evidence annexed showing which beneficiary has been evicted from the estate. The supreme court in Criminal Application No. 2 of 2018, observed that “the standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited[1985] KLR 229, 234 the Court of Appeal held that:“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 whichcan be said to be quasi-criminal in nature.”
5. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she willfully acted in a manner that flouted the Court Order. The applicant has therefore failed to establish how the respondent willfully and deliberately failed to obey court orders.
6. The Application contains generalized allegations that the Respondent has interfered with the estate but no prove has been availed to court.
7. This matter needs to be expedited in order to settle the dispute between the parties.
8. I find that the Application dated 14/05/2019 lacks in merit and I accordingly dismiss it.
9. The parties are directed to appear in court within 30 days for purposes of taking directions.
Delivered, signed and dated at Kericho this 29th day of January 2021.
A. N. ONGERI
JUDGE