[2009] KEHC 1870 (KLR)
The court held that for an application for committal for contempt to succeed, the applicant must prove that the alleged contemnor was personally served with the relevant court order and was aware of its contents. The applicant failed to provide a Return of Service or any conclusive evidence that the Town Clerk was...
Source-derived case information.
- Citation
- [2009] KEHC 1870 (KLR)
- Parties
- Applicant: Ann W. Mwangi; Respondent: Town Clerk (on behalf of Nairobi City Council)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 675 of 2006
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed with costs
- Judges
- RPV Wendoh
- Legal Topics
- Contempt of Court, Service of Process, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann W. Mwangi
Applicant
Town Clerk (on behalf of Nairobi City Council)
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Town Clerk of Nairobi City Council was properly served with the court order as required for contempt proceedings.
- 2 Whether failure to pay the decretal sum amounts to willful disobedience of a court order in the absence of proof of service.
Ratio Decidendi
The court held that for an application for committal for contempt to succeed, the applicant must prove that the alleged contemnor was personally served with the relevant court order and was aware of its contents. The applicant failed to provide a Return of Service or any conclusive evidence that the Town Clerk was personally served or made aware of the court order. Reliance on a letter merely stamped by someone at the City Council was insufficient to meet the required standard of proof. As a result, the court found that the applicant had not satisfied the legal requirements for committal for contempt, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The notice of motion is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Cause 675 of 2006
IN THE MATTER OF APPLICATION BY ANN W. MWANGI FOR LEAVE TO APPLY FOR AN OPRDER OF COMMITAL AND SEQUSTRATION FOR CONTEMPT
AND
IN THE MATTER OF CONTEMPT TO THE ORDERS OF THE HIGH COURT OF KENYA MADE BY THE HON. LADY JUSTICE WENDO ON 23RD APRIL 2008 AND ISSUED ON 12TH JUNE 2008
ANN W MWANGI ............................................................. APPLICANT
VERSUS
TOWN CLERK (being sued on behalf of
NAIROBI CITY COUNCIL ............................................. RESPONDENT
JUDGMENT
By the notice of motion dated 11/209, the Applicant, Ann W. Mwangi prays that the court do order that the Town Clerk, City Council of Nairobi, be committed to civil jail for contempt of court orders made by this court on 23/4/08 and that costs of this application be granted to her. The application is supported by grounds found on the face of the said application and the applicant’s affidavit dated 11/2/09.
The Applicant got judgment against the City Council of Nairobi on 19. 6.06 in CMCC 10541/03. The Respondent failed to pay the decretal sum and the Applicant filed a Judicial Review application to compel the Respondent to pay. The parties recorded a consent judgment on 23/4/08. The Respondent has failed to pay the said sums prompting the Applicant to file the current application to have the Town Clerk compelled to pay. Mr. Osiemo who appeared on behalf of the Respondent opposed the motion for only one reason, that there is no evidence that the Town Clerk has been served with the court order. Mr. Ngala who argued the application on behalf of the Applicant said that there is a letter received by the Town Clerk to confirm service.
In such an application for contempt of court, it is the duty of the Applicant to demonstrate that the contemnor has been served with the court order and has willfully disobeyed the court order. Since there are penal consequences for disobedience the standard of proof that the order is served tends to be higher than in normal civil cases. The Applicant has not filed any Return of Service to demonstrate how and when the Town Clerk was served. Counsel can not rely on a letter allegedly received and stamped by somebody at City Council of Nairobi. It is not known whether the Town Clerk received it personally or some other person received it and it is also not known whether it was drawn it to the attention of the Clerk.
The Applicant having failed to satisfy this court that the Town Clerk has been served with the court order, or is aware of the court order, the order sought can not be granted. The notice of motion is therefore dismissed with costs.
Dated and delivered at Nairobi this 1st of October 2009.
R.P.V. WENDOH
JUDGE
Delivered in the presence of:-
Mr. Osiemo for Respondent
Muturi – court clerk