[2014] KEHC 2130 (KLR)
The court held that, in accordance with the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans and the applicable Civil Procedure Rules of England, leave is not required to commence contempt proceedings where the alleged contempt concerns breach of a court order. Since the application...
Source-derived case information.
- Citation
- [2014] KEHC 2130 (KLR)
- Parties
- Applicant: Francis Ndungu Gitau; Applicant: John Ndungu Gitau; Respondent: District Land Registrar, Thika District Land Registry
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 32 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
- Outcome
- application struck out
- Judges
- BN Olao
- Legal Topics
- Contempt of Court, Leave to Institute Proceedings, Land Registry Orders, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ndungu Gitau
Applicant
John Ndungu Gitau
Applicant
District Land Registrar, Thika District Land Registry
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether leave of court is required to commence contempt proceedings for breach of a court order.
- 2 Whether the application for leave to commence contempt proceedings is properly before the court.
Ratio Decidendi
The court held that, in accordance with the Court of Appeal's decision in Christine Wangari Gachege v Elizabeth Wanjiru Evans and the applicable Civil Procedure Rules of England, leave is not required to commence contempt proceedings where the alleged contempt concerns breach of a court order. Since the application before the court sought leave to commence such proceedings, it was unnecessary and therefore incompetent. The application was accordingly struck out, but the applicants were at liberty to file a substantive motion for contempt without seeking leave.
Court Disposition
application struck out
Orders
- The application for leave to commence contempt proceedings is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC MISCELLANEOUS CIVIL APPLICATION NO. 32 OF 2014
FRANCIS NDUNGU GITAU ……………………....………..1ST APPLICANT
JOHN NDUNGU GITAU …………………………..……… 2ND APPLICANT
VERSUS
THE DISTRICT LAND REGISTRAR,
THIKA DISTRICT LAND REGISTRY …………………….. RESPONDENT
IN THE MATTER OF AN APPLICATION FOR LEAVE TO CITE THE DISTRICT LAND REGISTRAR, THIKA DISTRICT LAND REGISTRY FOR CONTEMPT
RULING
This application is brought under Section 5 (1) of the Judicature Act, Order 52 Rule 2 (1) 2 (2)of the Rules of the Supreme Court of England and Section 3A of the Civil Procedure Act. It seeks leave of this Court to commence contempt of Court proceedings against the District Registrar Thika Land Registry for the disobedience of an order issued by this Court on 23rd May, 2013 directing the said Land Registrar to issue the applicants with certified copies of the transfer documents registered at the Land Registry for transfer of parcel number NDARUGU/GACHARAGE/794 from Gitau Kamau to Gakuu Kiuthu and all documents evidencing combination of NDARUGU/GACHARARE/794 and NDARUGU/GACHARAGE/205 giving rise to NDARUGU/GACHARAGE/796 plus any other document relating to the transfer and/or combination of the aforesaid suit land.
The application is supported by the applicant’s affidavit dated 10th April, 2014.
I have considered the application. It is similar to the one I handled in KERUGOYA ELC NO. 20 of 2012 wherein I advised counsels that in cases where the contempt proceedings touch on a Court order, leave is not necessary. I cited the Court of Appeal’s decision in the case of CHRISTINE WANGARI GACHEGE VS ELIZABETH WANJIRU EVANS C.A CIVIL APPLICATION NO. 233 of 2007 (NBI) where that Court stated as follows:-
“We find on the basis of the new Civil Procedure Rules (of England) which are contained in the second supplement to the 2012 White Book that no leave is required before bringing an application like the one before us, for committal for contempt relating to breach of this Court’s order”.
The same Court after considering the law on the issue of contempt made the following statement:-
“It is clear from this summary that leave, now called “permission” is not required where committal proceedings relate to a breach of a judgment, order or undertaking”
In the case now before me, the breach complained of is in relation to an order of this Court and it is now clear that no leave is required before contempt proceedings are instituted.
This application is therefore struck out with no order as to costs. The substantive motion for contempt may be filed.
It is so ordered.
B.N. OLAO
JUDGE
14TH OCTOBER, 2014
14/10/2014
Before
B.N. Olao – Judge
Mwangi – CC
Applicant – absent
Respondent – absent
COURT: Ruling was due on 3rd October, 2014 but there was no appearance by the Applicant though present in Court when the date was fixed. Notices were issued that same will be delivered today. There is still no appearance.
Ruling is accordingly delivered today in the absence of the parties as I cannot keep the same pending indefinitely.
B.N. OLAO
JUDGE
14TH OCTOBER, 2014