Skip to content
JudgmentIn the Estate of EMILY GATHONI KANOTHA11 min read

In the Estate of EMILY GATHONI KANOTHA

High Court at Milimani High Court · · Namisi Helene Rafaela

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

FAMILY DIVISION

PROBATE & ADMINISTRATION CAUSE 3159 OF 2013

IN THE MATTER OF THE ESTATE OF EMILY GATHONI KANOTHA (DECEASED)

JANE WAITHERA MWENJA  ............................................... 1ST APPLICANT

JOSEPHINE WANJIRU KAMAU  .............................................. 2ND APPLICANT

VERSUS

JAMES KANOTHA    ...........................................  RESPONDENT

RULING

  1. The Grant herein issued to the 1st Applicant was confirmed on 27 May 2020. The same lists 3 beneficiaries, that is, the Applicants herein and the beneficiaries of the estate of Joyce Murugi Kanotha (Deceased).
  2. The Applicants have filed Summons dated 3 October 2024 pursuant to the provisions of section 47 of the Law of Succession Act and Order 73 of the Probate & Administration Rules seeking the following orders:
  3. Spent
  4. THAT this Honourable Court be pleased to cite and convict the Respondent for Contempt of Court and proceed to commit him to civil jail for a period of six (6) months and/or pay a fine of Kenya Shillings Five Million or any such amount as the Court may be pleased to order for deliberate disobedience of the Court orders issued on 15 July 2022;
  5. THAT this Honourable Court be pleased to order the Respondent to render a true, accurate and just account and to surrender to the Administratix/1st Applicant the entire rental income collected from LR. No. Dagoretti/ Kangemi/234; Dagoretti/Kangemi/S.156 and further the income garnered from Ngenda/Gathage/102 since the year 2007 to the date of this Application;
  6. THAT the Honourable Court be pleased to Order the Respondent herein to give the 1st Applicant/ Administratix, her agents, servants, employees, valuers, estate agents and any other person acting under the authority of the 1st Applicant/Administratrix unrestricted and unfettered access to all the estate properties namely: LR No. Dagoretti/ Kangemi /234, L.R No. Dagoretti/ Kangemi / S.156, L.R No. Ngenda/ Gathage T. 386 and L.R No. Ngenda/ Gathage /102 for purposes of managing and collecting rent therefrom;
  7. THAT the Officer commanding the nearest Police Stations to ensure compliance with these Orders by inter-alia accompanying the 1st Applicant/administratix, her agents, servants, employees, valuers, estate agents and any person acting under the authority of the 1st Applicant/ Administratix to enable them access the Estate Properties.
  8. THAT the Honourable Court be pleased to make such other orders it may deem fit and expedient in the circumstances;
  9. THAT costs of the Application be in the cause
  10. The Summons are supported by the Affidavit of Jane Waithera Mwenja. The summons arises from a Court Order issued by Honourable Lady Justice Mugure Thande on 15th July, 2022 against the Respondent which reads as follows:

That until further Orders of the Court, a temporary injunction be and is hereby issued restraining the Respondent whether by himself, his servants, agents, employees and or anyone acting on his authority from developing, constructing, selling, disposing of, subdiving, alienating, wasting, demolishing, planting, leasing or otherwise intermeddling with the property of the deceased referenced as Ngenda/ Gathage/102, Ngenda/ Gathage/T.386, Dagoretti/Waithaka/S.156 and Dagoretti/ Kangemi/234 (herein after "the estate properties')

  1. In her Affidavit, the 1st Applicant avers that the Respondent herein has been engaging in acts of wanton waste of the estate of the Deceased by collecting and expending all the income from the Estate without accounting for the same. In particular, the Respondent is accused of the following contemptuous acts:
  2. Collecting and retaining rental income from L.R No. Dagoretti/ Kangemi/234 and L.R No. Dagoretti/ Kangemi/ S.156 without accounting to the Court, the Administratix or other beneficiaries of the Estate;
  3. Garnering income from Ngenda/ Gathage/102 through cultivating, planting agricultural produce and felling of trees thereon without accounting to the Court, the Administratrix or other beneficiaries of the Estate;
  4. Constructing additional structures on L.R No. Dagoretti/ Kangemi/234 and L.R No. Dagoretti/ Kangemi/ S.156 and Ngenda/ Gathage/102 for his use without the knowledge or consent of the Administratix;
  5. Preventing the Administratix of the Estate, the other beneficiary (2nd Applicant), valuers and Estate Agents duly appointed by the Administratix and other persons acting under the authority of the Administratrix through threats from accessing the Estate properties;
  6. Disparage the Applicants herein to third parties by referring to them as dishonest and threatening to use force against them if the Administratrix continues with her duties as Administratrix.
  7. The 1st Applicant avers that the order of 15th July 2022 was issued in the presence of Advocates representing all parties, so the Respondent cannot feign ignorance of the same.
  8. The Respondent is one of the children of Joyce Murugi Kanotha (Deceased), who was one of the children of the Deceased herein. The Respondent is, therefore, a grandchild of the Deceased. In response to the Application, he filed a Replying Affidavit in which he confirmed being a beneficiary of the late Joyce Murugi Kanotha, but did not present any Grant issued to him or any other person appointed as the Administrator of his late mother’s estate. The Respondent also confirmed that he is fully aware of the injunctive orders issued herein but denied disobeying the same.
  9. With regard to land parcel Ngenda/ Gathage/102, the Respondent averred that he kept dairy cows on the same prior to the said order and that the order did not direct that the cows be removed. Any constriction thereon was stopped upon issuance of the order and the Respondent has not undertaken any other development within the property. Further, he averred that prior to the order being issued, he planted Napier grass on the land and has not planted any other crop since.
  10. Regarding access to the properties, the Respondent averred that the Applicants have unlimited access to the property and even constructed a mausoleum.
  11. On the issue of land parcel Dagoretti/ Kangemi/234, the Respondent averred that the same has some rented properties, which the Respondent takes care of and pays bills to ensure that the same is not wasted by the Administrators. The Respondent accused the Administratrixes of having never visited the rental properties nor demanded rent since their appointment as Administratrixes.
  12. On land parcel Dagoretti/ Kangemi/ S.156, the Respondent averred that he resides in one of the two residential houses constructed thereon. He has been in occupation of the same since 2007 with the full knowledge of the Applicants.
  13. The Respondent alleged that this application was prompted by his Summons dated 30 August 2024 complaining about the illegal transfer of land parcel Ngenda/ Gathage/ T.386, which was illegally transferred to one beneficiary notwithstanding that all the assets were to be shared equally among the 3 beneficiaries, including the Respondent’s late mother. He also noted that no complaints had been filed by the Applicants against him at any police station, nor had the Applicants written to him about any valuation of land.
  14. The Applicants filed a Further Affidavit refuting the Respondent’s allegations.
  15. The Application as canvassed by way of written submissions. The Applicants relied on the cases of Teacher's Service Commission vs. Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013 and Central Bank of Kenya & Another vs, Ratilal Automobiles Linited & Others Civil Application No. Nai. 247 of 2006. In the latter case,  the Court of Appeal held that judicial power in Kenya vests in the Courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.
  16. The Respondent relied on the case of Gatharia K. Mutikika -vs- Baharini Farm Ltd [1985] KLR 222, where it was held that contempt of court is an offence of a criminal character. A man may be sent to prison.

Analysis and Determination

  1. I have considered the Application, various Affidavits and submissions filed by the parties.
  2. As submitted by the Applicants, contempt of court is conduct that impairs the fair and efficient administration of justice. Section 5 of the Judicature Act confers jurisdiction on the superior Courts to punish for contempt of Court. Black's Law Dictionary (9th Edition) defines contempt of court as: "Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment."
  3. In the case of Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR), the Court stated thus:

“The reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court, observance and respect of due process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him.”

  1. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability.  This is because liberty of the subject is usually at stake and the applicant must prove wilful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, that:

A contempt of court is an offence of a criminal character.  A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a 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 criminal cases.  It is not safe to extend it to offences which can be said to be quasi-criminal in nature.

However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice.  The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.

  1. It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii) Failure by the Respondent to comply with the terms of the order.
  2. In the instant case, the Applicants have provided a copy of the Order made on 21 June 2022 and issued on 15 July 2022. The Applicants averred that the order was made in the presence of the respective Advocates. In his response, the Respondent confirmed knowledge of the Order.
  3. Having satisfied the first and second requirement, it is incumbent upon the Applicants to prove that there is failure by the Respondent to comply with the terms of the order. In the case of in Mahinderjit Singh Bitta v Union of India & Others 1 A NO. 10 of 2010, the Supreme Court of India held:

In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the order of the court, even to constitute a civil contempt. Every party is lis before the court and even otherwise, is expected to obey the orders of the court in its spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. 

  1. The third test, therefore, warrants detailed consideration to determine whether there was wilful and deliberate disobedience of the court order. In the instant application, the Applicants have averred to the disobedience of the Court Order by the Respondent with respect to various properties. On L.R No. Dagoretti/ Kangemi/234 and L.R No. Dagoretti/ Kangemi/ S.156, the Respondent is accused of collecting and retaining rental income from without accounting to the Court, the Administratix or other beneficiaries of the Estate. The Respondent produced the accounts of monies received and the expenses paid. In rejoinder, the Applicants accused the Respondent of collecting all the rent and using it, to the exclusion of the other Beneficiaries.
  2. On Ngenda/ Gathage/102, the Respondent is accused of garnering income from through cultivating, planting agricultural produce and felling of trees thereon without accounting to the Court, the Administratrix or other beneficiaries of the Estate. The Respondent averred that he had already been keeping cattle on the said property prior to the Order and that the Order did not require him to remove them. The Respondent also confirmed that he had been cultivating napier grass on the said parcel prior to the issuance of the Order. No new crop was planted after the order was sassed. He further confirmed that whatever construction was ongoing at the time the Order was issued had since been stopped. In their rejoinder, the Applicants did not address the issue of the construction, but instead averred that the Respondent was profiting from the land to their exclusion.
  3. On L.R No. Dagoretti/ Kangemi/234 and L.R No. Dagoretti/ Kangemi/ S.156 and Ngenda/ Gathage/102, the Applicants accused the Respondent of constructing additional structures on for his use without the knowledge or consent of the Administrati. The Respondent denied the allegation. No evidence was presented by the Applicants to demonstrate that the Respondent was in deed constructing additional structures.
  4. The Applicants accused the Respondent of preventing the Administratix of the Estate, the other beneficiary (2nd Applicant), valuers and Estate Agents duly appointed by the Administratix and other persons acting under the authority of the Administratrix through threats from accessing the Estate properties. The Respondent averred that there had been no communication to him or his Advocate on this issue. The evidence produced by the Applicants was a letter from the Valuer addressed to their Advocates.
  5. I have carefully considered the accusations by the Applicants and the responses by the Respondent. In my view, it has not been sufficiently demonstrated that the Respondent deliberately disobeyed court orders or at all.
  6. Taking into account the circumstances of this case and the material placed before court, I am not satisfied that the Applicants have proved their case to the required standard. Consequently, the application dated 3 October 2024 is dismissed. Each party will bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS  13 DAY OF  FEBRUARY  2025

HELENE R. NAMISI

JUDGE OF THE HIGH COURT

Delivered on virtual platform in the presence of:

.Mr. Mbabu ....for the Applicants

Mr. Gatumuta .........for the Respondent

Libertine Achieng ..... Court Assistant

    In the Estate of EMILY GATHONI KANOTHA In the Estate of EMILY GATHONI KANOTHA