[2009] KEHC 360 (KLR)
The court found that the applicant's allegation of non-service of the contempt application was not denied by the respondent. Since the right to be heard is fundamental and the applicant was not given an opportunity to respond to the contempt proceedings, the issuance of warrants of arrest without proper service...
Source-derived case information.
- Citation
- [2009] KEHC 360 (KLR)
- Parties
- Appellant: __MISSING__; Respondent: __MISSING__
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Warrants of Arrest Pending Appeal
- Outcome
- application allowed
- Judges
- FN Muchemi
- Legal Topics
- Contempt of Court, Natural Justice, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
__MISSING__
Appellant
__MISSING__
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Warrants of Arrest Pending Appeal
Legal Issues
- 1 Whether the applicant was denied the right to be heard before being found in contempt of court.
- 2 Whether the warrants of arrest should be stayed pending the determination of the appeal.
Ratio Decidendi
The court found that the applicant's allegation of non-service of the contempt application was not denied by the respondent. Since the right to be heard is fundamental and the applicant was not given an opportunity to respond to the contempt proceedings, the issuance of warrants of arrest without proper service violated the principles of natural justice. The court therefore held that the applicant had established sufficient grounds for the stay of the warrants of arrest pending the hearing and determination of the appeal.
Court Disposition
application allowed
Orders
- Warrants of arrest against the appellant in Bungoma CM CC NO.211 of 2008 are stayed pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Civil Appeal 98 of 2009
This is a ruling on the Appellant’s application dated 10th August 2009. It is brought under section 3A of the Civil Procedure Act, order XLI rule 4 (1) (2) of the Civil Procedure Act. It seeks for orders that warrants of arrest of the Appellant in Bungoma CM CC NO.211 of 2008 be suspended/stayed pending the hearing and determination of the appeal.
The grounds set out in the supporting affidavit are that the Applicant was condemned unheard for contempt of court which is against the principles of natural justice. The application for contempt was not served on the Applicant. It was not until 20/7/2009 when the counsel for the Applicant became aware that such warrants had been issued against his client.
The application is opposed on grounds that the Applicant disobeyed an injunctive order issued by the court and served on him. It is the Respondent’s contention that the application for contempt of court was heard and fully determined and should not be revisited by this court when the Applicant is still in contempt.
The Applicant denies service of the application for contempt. In his replying affidavit, the Respondent does not address the issue of the disputed service. The Respondent avers that the Applicant has tried to defeat the injunctive orders through the back door in other suits. However, no evidence of such suits has been annexed to the affidavit.
As the application stands, the allegation of failure to serve the Applicant with the application for contempt has not been denied. Any party alleged to be in contempt must be given an opportunity to show cause why he should not be punished for the contempt. In this case, the Applicant has shown he has a good ground to seek the order for stay and pending appeal.
I find the application merited and I allow it as prayed.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma
This 10TH day of December . 2009 in the presence of
Mr, Sichangi for respondent.