[2005] KEHC 1443 (KLR)
The court held that it has the discretion to allow rectification of procedural defects in contempt proceedings, including permitting the applicant to amend its application to substitute the correct court order allegedly disobeyed. The court found that such rectification serves the interests of justice, does not...
Source-derived case information.
- Citation
- [2005] KEHC 1443 (KLR)
- Parties
- Applicant: Leisure Lodges Limited; Respondent: Dr. Lalit D. Kotak
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 231 of 2005
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Amendment of Contempt Application
- Outcome
- leave to amend application granted
- Legal Topics
- Contempt of Court, Amendment of Pleadings, Procedural Rectification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leisure Lodges Limited
Applicant
Dr. Lalit D. Kotak
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Amendment of Contempt Application
Legal Issues
- 1 Whether the applicant can amend its contempt application to substitute the correct court order allegedly disobeyed.
- 2 Whether procedural defects in contempt proceedings can be rectified by the court in the interests of justice.
Ratio Decidendi
The court held that it has the discretion to allow rectification of procedural defects in contempt proceedings, including permitting the applicant to amend its application to substitute the correct court order allegedly disobeyed. The court found that such rectification serves the interests of justice, does not prejudice the respondent, and upholds the integrity of the judicial process. The respondent failed to provide any legal authority barring such an amendment. Accordingly, the applicant was granted leave to file and serve an affidavit bringing in the correct order within five days, after which the matter would proceed.
Court Disposition
leave to amend application granted
Orders
- The applicant is allowed to bring into the application the correct order following the ruling of 24/2/2005 by affidavit to be filed and served within five days.
- Further dates to be set to complete the proceedings after compliance.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Civ Appli 231 of 2005
LEISURE LODGES LIMITED .............................................................. APPLICANT
- Versus -
DR. LALIT D. KOTAK ....................................................................... RESPONDENT
Coram: Before: Hon. Justice Mwera
Kibe for Applicant
Asige for Respondent
Court clerk –Kazungu
R U L I N G
Before Mr. Kibe concluded his submission in support of the contempt proceedings herein against Dr. Kotak, the respondent, it transpired that he had annexed the court’s order of 16/12/2003 as the one which the respondent had ignored to obey (see appendix to JKM 8). The correct order ought to have been that that was issued by the undersigned on 24/2/2005 granting a stay pending appeal and in essence reinstating an injunction order.
What took place at this juncture is that Mr. Kibe sought this court’s leave to allow him by affidavit to bring in the present application the order following the ruling of 24/2/2005 in place that of 16/12/2003. He said that all this was by error or inadvertence and the court should grant that leave.
Mr. Asige resisted that application on the basis that there is no legal provision allowing for such a move in such proceedings and that the applicant should argue and head to the end of its submission strictly on the basis of the affidavit(s) plus annextures as per the notice of motion dated 3/5/2005 under review.
It is not in dispute that that application was brought under Section 5 Judicature Act (cap 8) and O.52 of the Supreme Court Practice of England.It is not the issue here as to why after forty years of independence and in the light of the developments in law in the U.K. and here, Kenya still has to follow the practice in the U.K. nonetheless due regard has been had before and now to that O.52 Supreme Court Practice Rules (above). In theWhite Book Service 2003that Order is titled:
COMMITTAL
Going over this provision of law the court’s eye fell on the following extracts which it considers relevant in the present circumstances regarding the Form of order for committal (para 52. 1.4). It reads in part:
“Recent authorities ... give a court the power to rectify procedural defects both in the procedure leading up to the making of the order and after it has been made. That discretion must be exercised so as to best reflect the requirements of justice. The court must not only take into account the interests of the contemnor but also the interests of the other parties and the interests of up-holding the reputation of civil justice in general ...
The court itself has a substantial interest in seeing that its orders are upheld. If orders are set aside on purely technical grounds this will undermine the system of justice and the credibility of court orders. As long as the order made by the judge is valid, the approach of the court will be to uphold the order in absence of any prejudice or injustice to the contemnor.”
The at paragraph 52. 3.2 it is added that:
“The court has a complete discretion ... to perfect an invalid order in a contempt case ... to do justice.”
Further on under Practice Direction – Committal Applications it was noted that:
“... an amendment to the application notice can be made with the permission of the court but not otherwise.”
Having the foregoing in view, this court is minded to allow the applicant to rectify its application by bringing up, by an affidavit to be filed and served, the correct order following the ruling of 24/2/2005 which the respondent has allegedly refused or ignored to obey. It is in the interests of justice to do so and the respondent will not be prejudiced at all.
In any case it was submitted but not denied that that order was served on the respondent along with a copy of the application for leave to bring these proceedings. And most of all the respondent has not put forth any authority in law, practice or case barring amending a notice of motion as the applicant seeks to do here. In the sum the applicant is allowed to bring into the application the correct order following the ruling of 24/2/2005 in the next 5 days whereupon further dates will be set to complete the discourse herein.
Orders accordingly.
Delivered on 7th September 2005.
J.W. MWERA
JUDGE