[2017] KEHC 5684 (KLR)
The court found that the preliminary objection lacked merit because the procedural requirements under English law are no longer strictly applicable in Kenya for contempt proceedings. The evolution of Kenyan law means that technical objections based on outdated foreign procedures do not suffice to summarily dismiss...
Source-derived case information.
- Citation
- [2017] KEHC 5684 (KLR)
- Parties
- Applicant: Angela Natasha Chemoss; Respondent: Cyrus Kiplimo Sang
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 87 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- DN Musyoka
- Legal Topics
- Preliminary Objection, Contempt of Court Procedure, Application of Foreign Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angela Natasha Chemoss
Applicant
Cyrus Kiplimo Sang
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the contempt application is fatally defective for non-compliance with English law procedural requirements.
- 2 Whether the preliminary objection raises valid technical grounds to strike out the contempt application.
Ratio Decidendi
The court found that the preliminary objection lacked merit because the procedural requirements under English law are no longer strictly applicable in Kenya for contempt proceedings. The evolution of Kenyan law means that technical objections based on outdated foreign procedures do not suffice to summarily dismiss an application. Issues such as service and disobedience are to be determined at the substantive hearing of the application, not at the preliminary stage. Accordingly, the preliminary objection was overruled, and the applicant was awarded costs.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection dated 22nd June 2015 is overruled.
- The applicant is awarded costs of the objection.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 87 OF 2015
ANGELA NATASHA CHEMOSS…………………………APPLICANT
-VERSUS-
CYRUS KIPLIMO SANG…............................................RESPONDENT
RULING
1. The respondent has filed a preliminary objection dated 22nd June 2015 to the contempt application dated 5th June 2015 on the technical grounds that it does not fully comply with the English law on the matter.
2. Parties have filed extensive submissions on the points raised. I have read the written submissions and noted the arguments made, inclusive of the caselaw cited. The objection was argued before me orally by counsel for the parties. I have also noted the arguments advanced.
3. The law in Kenya has changed substantially with respect to the extent to which we should apply the procedural steps prescribed under the English law. The English law has also changed, for example with respect to service of the contempt application on the Attorney-General. In any event issues as to whether the order was personally served and disobeyed are matters to be taken up at the hearing of the application.
4. I do not find any merit in the preliminary objection. I hereby overrule the same. The applicant shall have costs of the objection. The applicant is at liberty to prosecute her application dated 5th June 2015.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE