[2009] KEHC 3173 (KLR)
The court found that the applicant failed to file an undertaking as to damages, which is a mandatory requirement when seeking injunctive relief. Additionally, the court noted that personal service of the contempt application was not effected on the Attorney General, and there was insufficient evidence of proper...
Source-derived case information.
- Citation
- [2009] KEHC 3173 (KLR)
- Parties
- Plaintiff: Blue Hills Farmers Co. Ltd; Defendant: The School Committee Blue Hills Primary School; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 8 of 2009
- Procedural Posture
- Civil Suit / Ruling on Contempt Proceedings
- Outcome
- application dismissed
- Legal Topics
- Injunctions, Contempt of Court, Service of Process, Undertaking as to Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Blue Hills Farmers Co. Ltd
Plaintiff
The School Committee Blue Hills Primary School
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Contempt Proceedings
Legal Issues
- 1 Whether the respondents were in contempt of court orders restraining them from trespassing or constructing on the suit land.
- 2 Whether the applicant complied with the requirement to file an undertaking as to damages.
- 3 Whether proper service of the contempt application was effected on the respondents and the Attorney General.
Ratio Decidendi
The court found that the applicant failed to file an undertaking as to damages, which is a mandatory requirement when seeking injunctive relief. Additionally, the court noted that personal service of the contempt application was not effected on the Attorney General, and there was insufficient evidence of proper service on the respondents. The absence of these procedural requirements was fatal to the contempt application. Consequently, the court declined to grant the orders sought and dismissed the application for contempt.
Court Disposition
application dismissed
Orders
- The application for contempt is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL SUIT 8 OF 2009
BLUE HILLS FARMERS CO. LTD ……...........…….PLAINTIFF
VERSUS
THE SCHOOL COMMITTEE BLUE HILLS
PRIMARY SCHOOL……………………….....……. 1ST DEFENDAN
THE ATTORNEY GENERAL …………………….. 2ND DEFENDANT
RULING
NO. 2
On contempt proceeding
I: Background
1. On the 4th of February, 2009, M/S Blue Hills Farmers Company Ltd filed a plaint dated 3rd February, 2009 seeking an injunction from their school. The school committee Blue Hills Primary School restraining them from trespassing, constructing and or erecting any building on land parcel Kericho/Kipkelion North/Block /Blue Hills/18.
2. The Attorney General was named as the 2nd respondent.
3. An application under certificate of urgency was also filed by the said advocate for the applicant on 4th February, 2009. This court directed that the said matter be heard inter parties on 11th February, 2009. The said respondents failed to enter appearance or attend the inter parties hearing after being served.
4. This Court on hearing the advocate for the applicants granted orders of injunction against the respondents but not upon the Attorney General as no orders of injunction may issue against the Attorney General.
5. The respondent were served with the orders and penal notice. The applicants had been requested in the court order to file an undertaking in the event the orders sought was irregularly obtained.
6. The applicant returned to court with the application of 23rd April, 2009 seeking contempt proceedings.
II: Contempt proceedings
7. The applicant stated that the respondent was served with the application of contempt but not the Attorney General. That the respondent have continued to disobeyed the courts order duly served upon them together with a penal notice. They prayed that the applicant be committed to six (6) months civil jail.
III: Opinion
8. I have perused this file and noted that there is no letter of undertaking as to damages by the applicant in the event that the orders sought may be erroneously given.
9. This alone would warrant that the applicants should not be granted. In the event that they may have given such undertaking, in the contempt proceeding service is effected personally upon the contemptor. The Attorney General though had entered appearance on 27th February, 2009 but appearance is dated 17th February, 2009. Service upon them was never effected.
10. On the merits of the application non compliance of court orders by the advocate leaves no option to the court but to decline the application and duly dismissed the same.
DATEDthis 14th day of May, 2009 at KERICHO
M.A.ANG’AWA
JUDGE
Advocates
J.M. Motanya advocate instructed by M/S Motanya & Co. advocates for Plaintiff/Applicant
N/A for the Defendants/Respondents.