[2009] KEHC 3592 (KLR)
The court found that the application was procedurally defective as it was not brought in the manner prescribed for contempt proceedings, which require an initial application for leave by Chamber Summons. Additionally, the applicant failed to demonstrate that the court order was properly served on the Director of...
Source-derived case information.
- Citation
- [2009] KEHC 3592 (KLR)
- Parties
- Applicant: Lifting Equipment Co. Ltd; Respondent: Director of Surveys
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 350 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
- Outcome
- application dismissed
- Legal Topics
- Contempt of Court, Service of Process, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lifting Equipment Co. Ltd
Applicant
Director of Surveys
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether the application for leave to commence contempt proceedings was properly brought before the court.
- 2 Whether there was sufficient proof of service of the court order on the Director of Surveys.
- 3 Whether the requirements for commencing contempt proceedings were met.
Ratio Decidendi
The court found that the application was procedurally defective as it was not brought in the manner prescribed for contempt proceedings, which require an initial application for leave by Chamber Summons. Additionally, the applicant failed to demonstrate that the court order was properly served on the Director of Surveys, as the only evidence produced was an order with an illegible stamp and no affidavit of service. Since personal service of the court order and penal notice is mandatory in contempt proceedings unless otherwise directed by the court, and there was no evidence of such service, the application could not succeed. The absence of proof of service meant that the Director of...
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicant shall bear their own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 350 of 2006
LIFTING EQUIPMENT CO. LTD……………………………….APPLICANT
Versus
DIRECTOR OF SURVEYS & ANOTHER…………………RESPONDENT
RULING
By the Notice of Motion dated 22nd August 2007, the Applicant seeks leave of the court to file an Application to commit the Director of surveys for contempt of court orders that were made on 18th December 2007.
The Application is based on the Affidavit of Roshan Merali, the Director of the Applicant and a Statutory Statement. The matter is brought pursuant to Section 5 of the Judicature Act, & S. 3A Civil Procedure Rules.
An Application for leave to commence contempt proceedings should be brought in the same manner as an Application for Judicial Review which is commenced by way a Chamber Summons which seeks leave and after leave is granted, one then files a Notice of Motion. The Application before me is therefore defective.
Besides I do note that the Applicant has not demonstrated that the order of the court of 18th September 2007 was ever served on the Director of Survey. The Applicant purported to refer to an order bearing a stamp, that was allegedly received by the said Director but the same is illegible. Proof of service is normally by way of filing an Affidavit of service annexing the documents that were served and the acknowledgement if any. Only an order is exhibited with an illegible stamp and it is unknown who was served if at all or when and where. In such Application it is mandatory that the person cited for contempt be served personally with the court order and a penal notice, unless the court directs otherwise. For one to be contemptuous of a court order, he must have been aware of the court order and neglected to obey it. In this case there is no evidence of service of the court order on the Director. For the above reasons this Application is dismissed with the Applicant bearing their own costs.
Dated and delivered this 26th day of May 2009.
R.P.V. WENDOH
JUDGE
Present
Ms Kaberia for the Respondent
Muturi: Court Clerk