[2022] KEELC 2630 (KLR)
The court found that the affidavit of service filed by the process server was deficient as it failed to disclose how the process server identified the respondents for service of the contempt application. The applicant did not accompany the process server to assist in identification, and there was no explanation as...
Source-derived case information.
- Citation
- [2022] KEELC 2630 (KLR)
- Parties
- Applicant: Samson Otieno Adorn; Respondent: Peter Ondigo; Respondent: Bernard Okulo; Respondent: Patricia Tuju
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E32 of 2021
- Procedural Posture
- Contempt Application / Ruling on Service of Contempt Application
- Outcome
- Application for contempt not determined on merits; respondents to be re-served; costs in the cause.
- Judges
- A Ombwayo
- Legal Topics
- Contempt of Court, Service of Process, Status Quo Orders, Identification of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Otieno Adorn
Applicant
Peter Ondigo
Respondent
Bernard Okulo
Respondent
Patricia Tuju
Respondent
Procedural Posture
Contempt Application / Ruling on Service of Contempt Application
Legal Issues
- 1 Whether the respondents were properly served with the contempt application and supporting documents.
- 2 Whether the process server sufficiently identified the respondents for purposes of service.
- 3 Whether the application for contempt can proceed in the absence of proper service.
Ratio Decidendi
The court found that the affidavit of service filed by the process server was deficient as it failed to disclose how the process server identified the respondents for service of the contempt application. The applicant did not accompany the process server to assist in identification, and there was no explanation as to how the process server knew the respondents. Given the quasi-criminal nature of contempt proceedings, strict compliance with service requirements is necessary. As a result, the court directed that the respondents be re-served with the application before the matter could proceed further.
Court Disposition
Application for contempt not determined on merits; respondents to be re-served; costs in the cause.
Orders
- Respondents to be re-served with the contempt application.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
Adorn v Ondigo & 2 others (Environment & Land Case E32 of 2021) [2022] KEELC 2630 (KLR) (13 July 2022) (Ruling)
Neutral citation: [2022] KEELC 2630 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisumu
Environment & Land Case E32 of 2021
A Ombwayo, J
July 13, 2022
In the matter of the registered land act cap 300 (repealed) (o.s) and in the matter of land registration act no. 3 of 2021 and in the matter of section 7, 17 and 38 of the limitations of actions act cap 22 lok and in the matter of section 10 (1 and 2) of the high jcourt (organization and administration) act of 2015 and in the matter of order 37 rule 7 of the civil procedure rules 2010 and in the matter of land parcels Kisumu/Kadongo/4317 and Kisumu/Kadongo/508
Between
Samson Otieno Adorn
Applicant
and
Peter Ondigo
1st Respondent
Bernard Okulo
2nd Respondent
Patricia Tuju
3rd Respondent
Ruling
1. Samson Otieno Adorn (hereinafter referred to as the applicant) has come to court against Peter Ondigo, Bernard Okulo and Patricia Tuju praying that This Honourable court do cite the 2nd and 3rd Respondents for contempt of court orders issued by this Honourable Court on the September 27, 2021.
2. Moreover, that the 2nd and 3rd Respondents be committed to civil jail for contempt of court, be fined and have their assets confiscated or any other punishment permitted by law in accordance with Rule 81. 9 of the English Civil Procedure Rulesof 1998.
3. This Honourable Court be pleased to issue any other orders for contempt of court as it may deem fit. Costs of this Application be borne by the Respondents. The application is based on grounds that:a.This Honourable Court issued Orders on the September 27, 2021 ordering for maintenance of status quo pending the hearing and determination of the suit.b.The Respondents have disobeyed the said court orders issued by this Honourable Court on the September 27, 2021. c.The Respondents have gone ahead and trespassed on the said parcel of land being Kisumu/kadongo 4317 and Kisumu/kadongo/508 and began cultivating on themd.Unless the matter is heard and orders issued an insurmountable amount of prejudice shall be occasioned on the plaintiff herein.
4The application is supported by the affidavit of Samson Otieno Adorn.
5. I have perused the affidavit of service of Bonface Ondiegi the process server and do find that the same does not disclose how he was able to identify the alleged contemnors. He does not state how he knew the respondents and he does not explain who was able to pin-point the respondents to enable him serve. The applicant did not accompany him for purposes of identifying the respondents. Contempt applications being quasi-criminal in nature, service is very important. The upshot of the above is that I do direct that the respondents be re-served with the application. Costs in the cause.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13thDAY OF JULY 2022ANTONY OMBWAYOJUDGE