[2008] KEHC 94 (KLR)
The court found that the affidavit of service did not establish that the alleged contemnors were personally served with the relevant court orders. Instead, the orders were left with registry staff, which does not satisfy the legal requirement for personal service in contempt proceedings. As personal service is a...
Source-derived case information.
- Citation
- [2008] KEHC 94 (KLR)
- Parties
- Applicant: Joseph Mburu Gitau & 626 Others; Respondent: The Commissioner of Police; Respondent: The Commissioner of Lands; Respondent: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 673 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
- Outcome
- application struck out
- Judges
- JW Nyamu
- Legal Topics
- Contempt of Court, Service of Process, Personal Service Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mburu Gitau & 626 Others
Applicant
The Commissioner of Police
Respondent
The Commissioner of Lands
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether personal service of the court orders on the alleged contemnors was effected as required for contempt proceedings.
- 2 Whether the application for leave to commence contempt proceedings can stand in the absence of personal service.
Ratio Decidendi
The court found that the affidavit of service did not establish that the alleged contemnors were personally served with the relevant court orders. Instead, the orders were left with registry staff, which does not satisfy the legal requirement for personal service in contempt proceedings. As personal service is a strict prerequisite for commencing contempt proceedings, the failure to effect such service is fatal to the application. Consequently, the application for leave to commence contempt proceedings was struck out, with costs to abide the outcome of the main application.
Court Disposition
application struck out
Orders
- The application dated 4th July 2008 is struck out.
- Costs to abide the outcome of the main application when determined.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Miscellaneous Civil Application 673 of 2005
1. JOSEPH MBURU GITAU
2. FELISTA WARIARA NDUKU
3. ISAAC MBURU NJUGUNA
4. KEZIAH WANJA KINOTI
5. CECELIA WANJIRU GICHURU
6. GODFREY MUCHANJI AJIAMBO
7. FLACIA NJOKI
8. CHRISTIAN MUCHANJI AJIAMBO
9. MANY WAMBUI KARARI
10. JOSPHAT NJUGUNA MWANGI & 626 OTHERS...............APPLICANTS
VERSUS
THE COMMISSIONER OF POLICE
THE COMMISSIONER OF LANDS
THE HONOURBLE ATTORNEY GENERAL..................................DEFENDANTS
EX-PARTE
1. JOSEPH MBURU GITAU
2. FELISTA WARIARA NDUKU
3. ISAAC MBURU NJUGUNA
4. KEZIA WANJA KINOTI
5. CECELIA WANJIRU GICHURU
6. GODFREY MUCHANJI AJIAMBO
7. FLACIA NJOKI MUIRURI
8. CHRITIAN MUCHANJI AMIAMBO
9. MARY WAMBUI KARARI
10. JOSPHAT NJUGUNA MWANGI & 626 OTHRS
RULING
What is before me is an application for leave to commence contempt of court proceedings against three alleged contemnors. The application is dated 4th July, 2008.
I have taken into account the submissions of Counsel. What stands out is the issue of service of the orders. A perusal of the affidavit of the process server filed in court on 10th November, 2005 does not depone to the orders/decree having been personally served on the alleged contemnors. The orders were left with the registry staff in each case.
I find that personal service was not effected and for this reason the applicant has to start all over again. I strike down the application dated 4th July 2008 and further order that costs abide the outcome of the main application when determined.
DATED and delivered at Nairobi this 19th day of September, 2008.
J.G. NYAMU
JUDGE