Hussein Ahmed Farah & 2 others v Yusuf Abdi Adan [2021] eKLR

Key Facts

Issues

• Whether the orders issued on 21st April 2021 were served on the Defendants/Respondent.
• Who should bear costs of this application.
• Whether the Defendant/Respondent is in contempt of the said orders.

Holdings

• The defendant was directed to render accounts of all rental proceeds collected from the property over the past six years within 30 days, despite the dismissal of the contempt application.
• The court found that the ex parte orders issued on 21st April 2021 automatically lapsed because they were not served on the defendant within the mandatory three-day period under Order 40 Rule 4(3) of the Civil Procedure Rules. The judge emphasized that no evidence of timely service was provided by the plaintiffs.
• The application for committal of the defendant for contempt was dismissed, as the plaintiffs failed to demonstrate that the defendant disobeyed a valid court order. The judge ruled that the plaintiffs did not meet the heightened burden of proof required in contempt proceedings.

Remedies

• The court dismissed the contempt application and determined that the costs shall abide by the outcome of the main legal case.
• The defendant is ordered to provide a detailed account of all rental proceeds collected over the past six years within thirty days.

Legal Principles

• The burden of proof in contempt applications lies with the applicant to demonstrate non-compliance with court orders, as highlighted in the judgment citing Mutitika and Alken Communications cases. The plaintiffs failed to meet this burden by not proving service of the ex parte orders within the statutory period.
• The court emphasized that in contempt proceedings, the standard of proof must be higher than the balance of probability but lower than beyond reasonable doubt, as established in Mutitika v Baharini Farm Limited [1985] KLR 229 and Alken Connections Limited v Safaricom Limited [2013] eKLR.

Precedent Name

• Mutitika v Baharini Farm Limited
• Esther Kakonyo Wanjohi vs Julian Wambui Gakuru
• Basil Criticos v Attorney General & 8 others
• Alken Communications Ltd vs Safaricom Ltd & 2 Others
• Auni Bhaiji & 4 Others vs Chief Magistrate, Milimani Law Courts & 2 Others
• Immaculate Wambia Mungai v Fredrick Mwai Mwihia
• Shimmers Plaza Limited v National Bank of Kenya Limited

Cited Statute

• Constitution of Kenya
• Civil Procedure (Amendment No 2) Rules of England
• Judicature Act Cap 8 Laws of Kenya
• Civil Procedure Rules 2010
• Civil Procedure Act Cap 21 Laws of Kenya

Judge Name

Passage Text

• I find that there is no affidavit by a process server to confirm that the Defendant/Respondent was served within three (3) days from 27th April 2021.
• I find that the Plaintiffs/Applicants have failed to demonstrate that the Defendant/Respondent is guilty of disobeying the orders issued on 27th April 2021.
• In the case of Immaculate Wambia Mungai vs Fredrick Mwai Mwihia [2017] eKLR it was stated thus:- "Similarly, it is clear that under Order 50 Rule 2 of the Civil Procedure Rules, only Sundays, Christmas Day, Good Friday and any other public holiday are excluded in computation of time where the period for doing anything is less than six days. The injunction herein was granted Ex-parte on 8th February 2016 and the order issued by Deputy Registrar on 11th February 2016. When 14th February 2016 which is a Sunday is excluded, it is clear that the three days within which the order should have been served upon the defendant expired on 15th February 2016 which was the third day. That order, as is clear from the affidavit of the process server was served upon the defendant on 16th February 2016 one day after the day on which it ought to have been served as provided by the Rules.....it follows therefore that the order for injunction issued on 11th February 2016 "automatically" lapsed on 15th February 2016."