[2002] KEHC 777 (KLR)
The court declined to grant leave to institute contempt proceedings because there was no affidavit of service to demonstrate that the alleged contemnor, Gideon Kibet Toroitich, had been served with the court order purportedly flouted. Additionally, there was no copy of the order stopping the sale attached to the...
Source-derived case information.
- Citation
- [2002] KEHC 777 (KLR)
- Parties
- Plaintiff: Hill River Farm Ltd.; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1287 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Institute Contempt Proceedings
- Outcome
- application struck out
- Judges
- CA Ombija
- Legal Topics
- Contempt of Court, Leave to Institute Proceedings, Affidavit of Service, Court Orders, Vacation Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hill River Farm Ltd.
Plaintiff
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Institute Contempt Proceedings
Legal Issues
- 1 Whether leave should be granted to the applicant to institute contempt proceedings against the respondent's Managing Director.
- 2 Whether there was sufficient evidence of service of the relevant court order on the alleged contemnor.
- 3 Whether the application meets the procedural requirements for contempt proceedings.
Ratio Decidendi
The court declined to grant leave to institute contempt proceedings because there was no affidavit of service to demonstrate that the alleged contemnor, Gideon Kibet Toroitich, had been served with the court order purportedly flouted. Additionally, there was no copy of the order stopping the sale attached to the application. The absence of these critical procedural elements meant the application did not meet the threshold for granting leave to commence contempt proceedings. The court emphasized the necessity of strict compliance with procedural requirements in contempt matters, particularly the need for clear evidence of service and the existence of a valid, unambiguous court order.
Court Disposition
application struck out
Orders
- The application for leave to institute contempt proceedings is struck out.
- There is no order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 1287 OF 2001
HILL RIVER FARM LTD. ………………………………… PLAINTIFF
VERSUS
AGRICULTURAL FINANCE
CORPORATION………………………………………… DEFENDANT
R U L I N G
By an application by way of chamber summons dated 7th August, 2002, under the provisions of Order XXXIX Rule 9, 2A(2) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Section 5 of the Judicature Act (Cap 8 of Laws of Kenya) and under the High Court Vacation Rules, the applicant seeks orders that:
1) leave be granted to hear this application during the High Court vacation.
2) this honourable court be pleased to grant leave to the applicant herein to institute contempt proceedings against the respondent’s M anaging Director, Mr. Gideon Kibet Toroitich.
The application is based on the grounds that:
1) despite the fact that the respondent were represented in court on 22 nd August 2001, auction went ahead and the applicant has been prevented from entering the suit premises.
2) the acts of the respondent’s Managing Director shows that he has no respect for the honourable court.
The application is predicated upon the annexed affidavit of JARED OTHIENO sworn on 7th August, 2002.
Mr. Owino Opiyo argued that one Gideon Kibet Toroitich, the Managing Director of the defendant, has blocked the applicant from entering the suit premises despite the court order that cancelled the proposed sale of the suit property.
There is neither affidavit of service as evidence of service on the said Gideon Kibet Toroitich nor a copy of the order stopping the sale which is alleged to have been flouted. In the foregoing circumstances I am reluctant to issue leave to institute contempt proceedings.
Accordingly the application is struck out with no order as to costs.
DATED at NAIROBI this 3rd day of October, 2002
N.R.O. OMBIJA
JUDGE