Case ID:169550

In re Estate of Kiplangat Maina (Deceased) [2021] eKLR

Case Metadata

Case Number:

Succession Cause 18 of 2007

Parties:

In re Estate of Kiplangat Maina (Deceased)

Date Delivered:

29 Jan 2021

Case Class:

Civil

Court:

High Court at Kericho

Case Action:

Ruling

Judge(s):

Asenath Nyaboke Ongeri

Citation:

In re Estate of Kiplangat Maina (Deceased) [2021] eKLR

Court Division:

Family

County:

Kericho

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

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 CHERUIYOT

in 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 which

can 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 29

th

day of January 2021.

A. N. ONGERI

JUDGE