[2008] KEHC 863 (KLR)
The court found that the 1st respondent, Dennis Kariuki Kamutu, was personally served with the court order requiring him to return the container and pay demurrage charges. Despite proper service, he failed to comply with the order and did not offer any response or attend the hearing. The applicant's evidence was...
Source-derived case information.
- Citation
- [2008] KEHC 863 (KLR)
- Parties
- Applicant: Ataco Freight Services Co. Ltd; Respondent: Dennis Kariuki Kamutu; Respondent: Pius Kaloki
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 339 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application
- Outcome
- application allowed; 1st respondent found in contempt and committed to civil jail for 60 days
- Legal Topics
- Contempt of Court, Injunctive Orders, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ataco Freight Services Co. Ltd
Applicant
Dennis Kariuki Kamutu
Respondent
Pius Kaloki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the 1st respondent was served with the court order requiring return of the container and payment of demurrage charges.
- 2 Whether the 1st respondent willfully disobeyed the court order and is therefore in contempt of court.
- 3 Whether the applicant is entitled to an order committing the 1st respondent to civil jail for contempt.
Ratio Decidendi
The court found that the 1st respondent, Dennis Kariuki Kamutu, was personally served with the court order requiring him to return the container and pay demurrage charges. Despite proper service, he failed to comply with the order and did not offer any response or attend the hearing. The applicant's evidence was uncontroverted. The court held that the 1st respondent was in clear contempt of the order issued by the Resident Magistrate. The court exercised its jurisdiction under Section 5(1) of the Judicature Act to punish for contempt and, finding no mitigating factors, ordered the 1st respondent to be detained in prison for sixty days.
Court Disposition
application allowed; 1st respondent found in contempt and committed to civil jail for 60 days
Orders
- Dennis Kariuki Kamutu, the 1st respondent, is to be detained in prison for a period of sixty (60) days for contempt of court.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Civ. Applil. 339 of 2008
ATACO FREIGHT SERVICES CO. LTD…….....………….APPLICANT
AND
DENNIS KARIUKI KAMUTU…….………..………..1ST RESPONDENT
PIUS KALOKI………………….……………………..2ND RESPONDENT
RULING
On 19th May 2008, T. Gesora, Resident Magistrate, in SRMCC No. 1085 of 2008 at Mombasa made the following orders against Dennis Kariuki Kamutu and Pius Kaloki who were defendants in the said case which had been instituted by Ataco Freight Services Company Limited:
“ (d) That an order of injunction be and is hereby granted directing the defendants to forthwith return the 1 x 40 foot container No. PCIU 8257530 to the Port of Mombasa.
(e) That the defendants do pay demurrage charge of USD 24 per day from the 22nd March 2008 till the return of the 1 x 40 foot container No. PCIU 8257530 to the Port of Mombasa.
(f) That costs be borne by the defendants.”
The applicant has filed an affidavit of service sworn by one Henry Ohenyo on 23rd May 2008. In the affidavit it is deponed that the said Henry Ohenyo served the above order on 23rd May 2008 upon Dennis Kariuki Kamutu, the 1st respondent herein personally. Notwithstanding the said service, the 1st respondent did not comply with the said order. Hence this application for mainly an order that the 1st applicant be committed to Civil Jail for six (6) months or for such period as the court may deem fit.
The applicant has moved the court under Rule 2 (3) and 3 of the High Court Practice Rules, Section 5 of the Judicature Act, Cap 8, Section 3A of the Civil Procedure Act and Order 52 Rules 2 and 3 of the Supreme Court Practice Rules of England. Leave to institute these proceedings was duly sought and obtained from Sergon J on 5th August 2008. This application was then lodged on 18th August 2008 and served upon the 1st respondent on 27th August 2008. The 1st respondent has filed no response to the application nor did he attend court on 8th October 2008 when this motion came up for hearing. The motion was therefore heard ex-parte.
The affidavit evidence of the applicant has not been controverted. In the premises, the 1st respondent is clearly in contempt of the order given by Gesora, Resident Magistrate in Mombasa SRMCC No. 1085 of 2008 on 19th May 2008. He is accordingly liable to be punished by this court. The necessary jurisdiction is found in Section 5 (1) of the Judicature Act, Cap 8 of the Laws of Kenya which reads as follows:-
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England,…..”
Taking into account all the circumstances and there being no mitigating factors, I order that the 1st respondent Dennis Kariuki Kamutu be detained in prison for a period of sixty (60) days.
Order accordingly.
DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF OCTOBER 2008.
F. AZANGALALA
JUDGE
Read in the presence of:-
Adhoch for the Applicant.
F. AZANGALALA
JUDGE
29TH OCTOBER 2008