[2017] KEHC 2906 (KLR)
The court found that there was no evidence on record that the order issued on 6th December 2016 was served on the accounting officer in the Office of the President. While there was a return of service for the order dated 24th November 2016, there was none for the subsequent order. Since service of the relevant order...
Source-derived case information.
- Citation
- [2017] KEHC 2906 (KLR)
- Parties
- Appellant: Asman N. Waluhbuka; Appellant: Shaban N. Echesa; Respondent: Timothy Misikoi; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Contempt of Court
- Outcome
- Application for contempt dismissed; order to be served afresh.
- Legal Topics
- Contempt of Court, Service of Court Orders, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Asman N. Waluhbuka
Appellant
Shaban N. Echesa
Appellant
Timothy Misikoi
Respondent
The Attorney General
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Contempt of Court
Legal Issues
- 1 Whether the accounting officer in the Office of the President can be held in contempt of court for failure to pay the decretal sum awarded in the case.
- 2 Whether there is sufficient evidence of service of the relevant court order on the concerned officer to justify contempt proceedings.
Ratio Decidendi
The court found that there was no evidence on record that the order issued on 6th December 2016 was served on the accounting officer in the Office of the President. While there was a return of service for the order dated 24th November 2016, there was none for the subsequent order. Since service of the relevant order is a necessary precondition for contempt proceedings, the application to hold the officer in contempt for failure to pay the decretal sum was untenable. The court therefore declined to grant the application for contempt and instead directed that the order dated 6th December 2016 be served on the concerned officer.
Court Disposition
Application for contempt dismissed; order to be served afresh.
Orders
- The application to declare the accounting officer in the Office of the President in contempt of court is dismissed.
- The order dated 6th December 2016 shall be served on the concerned officer.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO.4 OF 2007
ASMAN N. WALUHBUKA.........................................1ST APPELLANT
SHABAN N. ECHESA................................................2ND APPELLANT
VERSUS
TIMOTHY MISIKOI.....................................................1ST RESPONDENT
THE ATTORNEY GENERAL.....................................2ND RESPONDENT
RULING
1. This matter came up for directions on 21st March, 2017 when the advocate appearing for the appellants Mr Masake informed the court that there was an order issued by the court on 13th December 2016. That the order was served but that the officer who was served with the order has not complied with it. He prayed for the court to declare the officer who has not complied with the order to be in contempt of court and warrant of arrest do issue to him.
2. I have perused the court file but I have not seen any order issued on 13th December 2016. The order that I can see in the file is the one issued on 24th November, 2016 where it was ordered that the accounting officer at the Office of the President do show cause why he should not be held in contempt for failure to pay the decretal sum awarded in this case.
3. On the 6th December, 2016, the advocate for the appellants Mr Kasamani told the court that the order had been served and that the respondent had not appeared. The court then ordered that the order be implemented by payment of the decretal sum in 60 days from 6th December, 2016 in default the officer concerned to be held in contempt of court.
4. There is a return of service in the court file by Mr Charles Lutta Kasamani indicating that he served copies of this court’s order dated 24th November 2016 on a legal officer in the office of the president on the 28th November 2016.
However there was no return of service on the order of the court issued on 6th December 2016. The application by Mr Masake for the accounting officer in the Office of the President to be held in contempt of court for failure to pay the decretal sum cannot hold as there is no evidence that the said order was served on the concerned officer. In the foregoing the application to declare the said officer to be in contempt is untenable. I thereby order that the order dated 6th December, 2016 be served on the concerned officer.
Delivered, signed and dated at Kakamega this 20th day of July, 2017.
J. NJAGI
JUDGE
In the presence of:
N/A…………………………………………………………………………….. for appellants
N/A…………………………………………………………………………….. for respondents
Paul…………………………………………………………………………….. court assistant
Appellants ………………………………………………………. absent
Respondents ………………………………………………….. /absent