[2015] KEHC 2472 (KLR)
The Respondents were served with the court order on 7th February, 2013, which required them to unconditionally release motor vehicle registration No. KAB 377Q and its transfer documents to the Applicant. The application for contempt was filed on 12th February, 2013, before the stay of execution was granted on 14th...
Source-derived case information.
- Citation
- [2015] KEHC 2472 (KLR)
- Parties
- Applicant: Benard Karanja Kingara; Respondent: Tom Odongo; Respondent: Eng. S.K. Mburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 105 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Contempt Application Prior to Sentencing
- Outcome
- Application for contempt allowed; Respondents found in contempt. Sentencing deferred for mitigation.
- Legal Topics
- Contempt of Court, Enforcement of Court Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Karanja Kingara
Applicant
Tom Odongo
Respondent
Eng. S.K. Mburu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Contempt Application Prior to Sentencing
Legal Issues
- 1 Whether the Respondents were in contempt of the court order issued on 1st February, 2013.
- 2 Whether the stay of execution granted on 14th February, 2013 protected the Respondents from compliance prior to that date.
Ratio Decidendi
The Respondents were served with the court order on 7th February, 2013, which required them to unconditionally release motor vehicle registration No. KAB 377Q and its transfer documents to the Applicant. The application for contempt was filed on 12th February, 2013, before the stay of execution was granted on 14th February, 2013. The court found that the Respondents had defied the order between the date of service and the grant of the stay, and thus were in contempt. The subsequent stay order did not absolve the Respondents of their obligation to comply with the court order prior to the stay being granted. The court therefore found the Respondents in contempt of the order issued on 1st...
Court Disposition
Application for contempt allowed; Respondents found in contempt. Sentencing deferred for mitigation.
Orders
- Respondents are found to be in contempt of the court order issued on 1st February, 2013.
- Parties to appear before the court on 21st September, 2015 to mitigate before sentencing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS APPLICATION NO. 105 OF 2013
IN THE MATTER OF AN APPLICATION FOR CONTEMPT PROCEEDINGS
BETWEEN
BENARD KARANJA KINGARA.....................APPLICANT
VERSUS
TOM ODONGO
ENG. S.K. MBURU...........................RESPONDENTS
RULING
The Applicant has filed the motion dated 12th February, 2013 seeking an order of committal to prison against the Respondents for a term of six (6) months and/or attachment of their assets for disobedience of the order made on 1st February, 2013 by the Chief Magistrate's Court in CMCC No. 4290 of 2012, Nairobi compelling them to forthwith release unconditionally motor vehicle registration No. KAB 377Q together with the transfer documents thereof to the Applicant.
The reasons advanced in the grounds set out on the face of the application and the supporting affidavit of the Applicant are that the Respondents have defied a mandatory order issued by the Chief Magistrate's Court in CMCC No. 4290 of 2012, Nairobi on 1st February, 2013 compelling the Respondents to forthwith unconditionally release motor vehicle registration No. KAB 377Q together with transfer documents to the Applicant.
In response to the application Karisa Iha who is the Director of Legal Affairs at City Council of Nairobi swore a replying affidavit which was filed on 13th March, 2013. He contended that Hon. Waweru J., granted an order of stay of execution of the order of 1st February, 2013 in Nairobi HCCA No. 69 of 2013 and that the only way with which the Applicant can enforce the order of 1st February, 2013 is to challenge the stay of execution granted on 14th February, 2013. He further stated that the suit vehicle has not been vandalised and is not subject to transfer to a third party as alleged. That the Applicant was granted 14 days within which to file a replying affidavit to the application for stay but opted to file this application.
I have given due consideration to this application and the documents filed herein. It is not contended that the order of 1st February, 2013 was served upon the Respondents on 7th February, 2013 and it is on the same date that this application was filed that the Respondent moved to this court vide Nairobi HCCA No. 69 of 2013 seeking stay of execution. Clearly between the date of service of the order and 12th February, 2013, the Respondents had defied the orders of 1st February, 2013 which required them to forthwith and unconditionally release motor vehicle registration No. KAB 377Q together with transfer documents to the Applicant and I find that there was contempt. The Respondents were not covered by the stay orders granted on 14th February, 2013. In the circumstances I find merit in this application. Consequently the Respondents are found to be in contempt of the court order issued on 1st February, 2013. Before sentencing I direct the parties to appear before this court on 21. 09. 2015 to mitigate.
Dated, Signed and Delivered at Nairobi this 31st day of August, 2015
J.K.SERGON
JUDGE
In the presence of:
...................................... for the Applicant
.....................................for the Respondent