[2013] KEHC 6764 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION

ELC. CASE NO. 266 OF 2011

HANNAH NYAMBURA…………………1ST PLAINTIFF/APPLICANT

(Suing as the personal representative of Godwin Kamau Gathu (deceased)

HANNA NYAMBURA…………………..2ND PLAINTIFF/APPLICANT

FAITH WARIARA GATHU.…………..3RD PLAINTIFF/APPLICANT

VERSUS

EMBAKASI RANCHING LIMITED………………………DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 19th September 2011 in which the Plaintiff/Applicant seeks for the following orders:

That the Defendant herein, Embakasi Ranching Company Ltd be cited for disobeying the court order issued by Hon. Mr. Justice Warsame issued on 19th July 2011;

That the Defendant and its Chairman Samuel Mwangi Thuita’s properties be attached jointly and severally and the named Chairman Samuel Mwangi Thuita be further fined or committed to jail for at least 6 months for disobeying the court order issued by Hon. Mr. Justice Warsame issued on 19th July 2011; and,

That costs hereof be to the Plaintiffs

The Application is premised upon the grounds set out on the face of it together with the Supporting Affidavit of Hannah Nyambura sworn on 19th September 2011 in which she stated that she sought for and obtained an interlocutory injunction vide the application dated 7th June 2011. She further stated that the resulting order was duly served upon the Defendant through its authorized officers on 22nd July 2011 together with the penal notice but the Defendant’s officers have refused to comply with the same. She further averred that she is suffering irreparably due to the impunity displayed by the Defendant’s officers in the face of a direct court order and sought for the court to punish such disobedience.

The application is not opposed. Despite being duly served, the Defendant did not file any response to this application.

The law applicable in this kind of instances is Section 63(c) of the Civil Procedure Act which provides that:

“In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed-

Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.”

Order 40 Rule 3(1) of the Civil Procedure Rules provides as follows:

“In cases of disobedience, …, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.”

The above cited legal provisions clearly indicate that this court has the powers to grant the orders sought by the Plaintiffs/Applicants in this application.

Further, I wish to cite and rely on the case of Anne Wanjiru Kabiru v. Bedan M. Chege (t/a Bedans Auctioneering Services) Misc. Appl. No. 114 of 2007 (2008) eKLR wherein it was stated as follows:

“It is now trite law that for an application for committal of anyone to prison for contempt of court to succeed, there must have been personal service of the order in question as well as a penal notice upon the alleged contemnor”

The instant application has attached to it a copy of the order complete with the penal notice which is endorsed with an acknowledgement of receipt by Embakasi Ranching Co. Ltd on 22nd July 2011 at 11. 00 am. This is very good but not good enough as the company is represented by directors, one of whom is the Chairman Samuel Mwangi Thuita, whom the Plaintiffs/Applicants seek to have committed to jail for contempt. However, no evidence has been supplied to this court to show that the said Samuel Mwangi Thuita was personally served with the order.

In the case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & another (2013) eKLR, Mabeya, J.stated as follows:

“In the same way, in order to hold the directors of such a corporation personally liable for breach of an order, such directors had to be served with the order or it had to be shown that they had personal knowledge of the same.”

In this case, no proof has been given to show that Mr. Samuel Mwangi Thuita was served with the injunction order. On that ground alone, this application fails. Accordingly, I hereby dismiss this application. Costs shall be in the cause.

SIGNED AND DELIVERED AT NAIROBI THIS 1ST

DAY OF NOVEMBER 2013

MARY M. GITUMBI

JUDGE