[2007] KEHC 1589 (KLR)
The court found that the Applicant failed to annex the judgment and the relevant orders allegedly disobeyed, making it impossible to ascertain what was granted and whether there was actual disobedience. Furthermore, the court held that the Applicant was guilty of inordinate and inexcusable delay, having waited over...
Source-derived case information.
- Citation
- [2007] KEHC 1589 (KLR)
- Parties
- Respondent: Drive In Developers Ltd; Respondent: William K. Kirwa; Respondent: Iyadi Omulembe; Respondent: Bath Ragalo; Applicant: Francis Mburu (Managing Director, Plaintiff)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 334 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Leave to Apply for Committal for Contempt
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Contempt of Court, Enforcement of Orders, Delay in Execution, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Drive In Developers Ltd
Respondent
William K. Kirwa
Respondent
Iyadi Omulembe
Respondent
Bath Ragalo
Respondent
Francis Mburu (Managing Director, Plaintiff)
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Leave to Apply for Committal for Contempt
Legal Issues
- 1 Whether the Respondents disobeyed the court orders issued on 4th April 2006.
- 2 Whether the Applicant is entitled to leave to apply for committal for contempt of court.
- 3 Whether the delay in seeking enforcement of the decree and orders is excusable.
Ratio Decidendi
The court found that the Applicant failed to annex the judgment and the relevant orders allegedly disobeyed, making it impossible to ascertain what was granted and whether there was actual disobedience. Furthermore, the court held that the Applicant was guilty of inordinate and inexcusable delay, having waited over 13 years after judgment and several years after the decree before seeking enforcement. The court was not persuaded to exercise its discretion in favour of the Applicant due to the lack of evidence and the unexplained delay, and therefore declined to grant the orders sought.
Court Disposition
application dismissed with costs
Orders
- The Applicant's Chamber Summons is dismissed with costs to the Respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 334 of 2007
DRIVE IN DEVELOPERS LTD……………..………....………1ST RESPONDENT
VERSUS
WILLIAM K. KIRWA………………………….....……….….…..2ND RESPONDENT
IYADI OMULEMBE…………………….......…...…..…….…..…3RD RESPONDENT
BATH RAGALO……………………….......….…..……………...4TH RESPONDENT
RULING
Before me is a Chamber Summons brought under Section 5(1) of the Judicature Act (Cap 8), Order L11 (2) of the Civil Procedure Rules and Section 3A of the Civil procedure Act in which the Applicant seeks leave to apply for an order for committal to prison against William Kirwa, Iyadi Omulembe and Bath Ragalo, the Managing Directors of Agricultural Development Corporation, Agricultural Finance Corporation and Tysons Habenga Ltd respectively for such a period as this Honourable Court may deem fit and just and/or for the sequestration of any such property as would be sufficient to compensate the Plaintiff/Applicant for his loss.
The application is based on the grounds that the Respondent has disobeyed an existing decree and orders of this Honourable Court in this suit issued on 4th April 2006; that the Respondents by their action clearly show that they have absolutely no respect at all to this Republic’s justice system and this Honourable Court which issued the orders, that it is in the interest of justice fair play and principle of equity that this Honourable Court finds in the Applicant’s favour and proceed to grant the leave sought, and that the Respondents’ behaviour has and continue to expose this Honourable Court to ridicule and despondence and this Honourable Court must act firmly to assert its authority and protect its dignity.
The application is also supported by an affidavit sworn by Francis Mburu the Managing Director of the Plaintiff who avers that the Respondents have refused to abide with the contents of the said orders dated 4th April 2006 which orders were duly served upon them (FMI), that he believes that in the interest of justice and for the purposes of upholding the dignity and honour of this Honourable Court, the orders sought be granted; that there is no other way of enforcing the said orders as the OCPD has refused and/or neglected to enforce the said order.
Although the Managing Director of the Applicant has referred to the alleged orders dated 4th April 2006; (MFI) in his affidavit in support of this application’ the same was not annexed.
The facts as gathered from the affidavit evidence and the statement of facts as well as verifying affidavit are that Judgment was delivered by Bosire J (as he then was) on 13th July 1992 in HCCC 3970 of 1987 and the Decree was issued on 28th July 2004. This is about 14 years after the judgment was delivered. The Applicant waited for another 2 years before he filed an application under certificate of urgency in Chambers when he obtained the injunctive orders restraining the Respondents from preventing the applicant from having access to the suit premises.
All that there is on record is the extracted order but the judgment that was delivered on 13th July 1992 is not annexed thereto and therefore it is not possible to know what the Applicant sought and what was granted in the said judgment and why the delay of over 13 years for the issuance of the court order and the alleged injunction was issued on 4th April 2006 another 2 years from the date the extracted order had issued.
There was inordinate inexcusable delay which has not been explained and I am not persuaded to exercise my discretion in favour of the Applicant.
Accordingly I decline to grant the orders sought and dismiss the Applicant’s application with costs.
Dated and delivered at Nairobi this 19th day of October 2007.
J.L.A. OSIEMO
JUDGE