[2019] KEHC 2037 (KLR)
The court found that, given the conflicting accounts regarding service of the order and the quasi-criminal nature of contempt proceedings requiring a higher standard of proof, the benefit of the doubt should be given to the applicant. The court noted that the parties had settled the underlying issue and,...
Source-derived case information.
- Citation
- [2019] KEHC 2037 (KLR)
- Parties
- Applicant: Owiti Awuor; Respondent: Primrose Mukasa Bafilawala; Respondent: Veronica Njeri Awuor
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1577 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application for Review of Contempt Orders
- Outcome
- Application for review allowed; contempt order and penalties vacated.
- Judges
- A Ali-Aroni
- Legal Topics
- Contempt of Court, Review of Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Owiti Awuor
Applicant
Primrose Mukasa Bafilawala
Respondent
Veronica Njeri Awuor
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review of Contempt Orders
Legal Issues
- 1 Whether the applicant was aware of and properly served with the court order of 5th October 2018.
- 2 Whether the contempt finding and penalties against the applicant should be reviewed or set aside.
Ratio Decidendi
The court found that, given the conflicting accounts regarding service of the order and the quasi-criminal nature of contempt proceedings requiring a higher standard of proof, the benefit of the doubt should be given to the applicant. The court noted that the parties had settled the underlying issue and, accordingly, vacated the contempt order and associated penalties, but issued a stern warning to the applicant regarding future compliance with court orders.
Court Disposition
Application for review allowed; contempt order and penalties vacated.
Orders
- The order of 6th December 2018 finding the applicant in contempt and imposing penalties is vacated.
- Costs in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 1577 OF 2006
IN THE MATTER OF THE ESTATE OF MARTIN LUTHER AWUOR (DECEASED)
OWITI AWUOR............................................................APPLICANT
VERSUS
PRIMROSE MUKASA BAFILAWALA)
VERONICA NJERI AWUOR).................INTERESTED PARTIES
RULING
1. The application subject of this ruling is dated 16th of January 2019. It seeks to have the court review its orders issued on the 6th of December 2018 where the court found the Applicant herein OwitiOwuor to have been in contempt of its orders of 5th October 2018 and fined the Applicant Khs.200,000/=, directed for his arrest and incarceration until he complied with court orders.
2. In the Applicationfor review the applicant contends that he had no prior knowledge of the said order; he denies having been served through his secretary or having received copies via his email address.
3. The Respondent on the other hand contends that the Applicant was aware of the order as the same was sent to him via email and service was effected through his secretary in the Applicant’s Mombasa office.
4. Contempt proceedings are quasi criminal and proof of contempt has to be beyond the usual proof on a balance of probabilities.
5. From the arguments of the parties the court will give the benefit of the doubt to the Applicant with a stern warning that the court expects the Applicant who is an advocate of the High Court to comply with the orders issued for as long as the same have not been reviewed. A game of cat and mouse is not for the court.
6. For the above reasonand in view of the settlement by the parties on the issue that was at hand, I vacate the said order.
7. Costs in the costs.
Dated and Delivered in Nairobi on this21STday of NOVEMBER 2019.
......................
ALI-ARONI
JUDGE