[2017] KEHC 5699 (KLR)
The court found that since no substantive motion for committal for contempt was filed after leave was granted, there was no application before the court upon which it could make any orders regarding contempt. The only application on record was for leave to bring such a motion, which had already been disposed of....
Source-derived case information.
- Citation
- [2017] KEHC 5699 (KLR)
- Parties
- Applicant: Rose Wafula; Respondent: Mary Odenton Wafula
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1914 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Committal for Contempt
- Outcome
- No orders made; no substantive application before the court.
- Judges
- DN Musyoka
- Legal Topics
- Contempt of Court, Committal Proceedings, Leave to File Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Wafula
Applicant
Mary Odenton Wafula
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Committal for Contempt
Legal Issues
- 1 Whether the court can make orders for committal for contempt in the absence of a substantive motion for contempt.
- 2 Whether the application for leave to file a contempt motion can be a basis for substantive orders.
Ratio Decidendi
The court found that since no substantive motion for committal for contempt was filed after leave was granted, there was no application before the court upon which it could make any orders regarding contempt. The only application on record was for leave to bring such a motion, which had already been disposed of. Therefore, the court could not determine, dismiss, strike out, or disallow any application for committal for contempt, as none existed. The court emphasized that it cannot act in the absence of a proper application and criticized the applicant's counsel for failing to disclose that no substantive motion had been filed.
Court Disposition
No orders made; no substantive application before the court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 1914 OF 2008
IN THE MATTER OF THE ESTATE OF SYLVESTER CHARLES WAFULA (DECEASED)
RULING
1. On 4th August 2015, the applicant, Rose Wafula, lodged two applications in court under certificate of urgency. Both are dated 3rd August 2015. The Motion seeks leave for the applicant to apply for an order for committal of Mary Odenton Wafula for contempt of court. The Chamber Summons sought that the Notice of Motion dated 4th August 2015 be heard during the court vacation.
2. The matter was placed before the Duty Judge, Achode J., on 13th August 2015. The application was certified urgent, it was to be served and thereafter heard inter partes on a date to be obtained at the registry. On 15th February 2016, the Motion was placed before me and urged. I allowed it, by granting the leave sought and directing that the substantive application for committal to civil jail be filed within 21 days.
3. I have carefully perused my record. I have not been able to trace any substantive Motion for contempt of court. It would appear that the applicant, upon obtaining leave on 15th February 2016 to bring the substantive application, did not comply with the direction. There is therefore no substantive application to have the respondent cited for contempt of court. All there is the application for leave to make such an application, which application was disposed of on 15th February 2016.
4. When the matter came upon for hearing on 26th October 2016, counsel for the applicant stated that it was the main application for revocation of grant which was up for hearing. Counsel for the respondent on his part said that he was only ready for the contempt application, given that the notice for the hearing did not indicate which of the two was up for hearing. When the court concurred with counsel for the respondent that there was no indication as to which of the two applications was coming up for hearing, the advocates for both sides agreed to have the contempt application disposed by way of written submissions to be filed within given timelines. The applicant filed her submissions, but the respondent did not file any.
5. However, as there is no Motion before me seeking committal of the respondent to jail for contempt of court, there cannot be any basis for me to make orders in that regard. What is on record is an application for leave to bring such a Motion. No such Motion was ever filed. I cannot find for the applicant and against the respondent on the basis of an application for leave, which has, in any event, been disposed of. There is nothing for me to determine, or to dismiss, or to strike out or disallow. It is unfortunate that counsel for the applicant was not candid enough to let the court know that there was no substantive Motion, leaving me to plough through the record while she knew that there was no application for determination. I need not say more.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE