[2013] KEHC 1490 (KLR)
The court found that the Plaintiff's application for contempt and a warrant of arrest was, in substance, an attempt to enforce payment of a monetary sum arising from a consent order. The court held that such enforcement should be pursued through extraction of a decree and commencement of execution proceedings before...
Source-derived case information.
- Citation
- [2013] KEHC 1490 (KLR)
- Parties
- Plaintiff: Lord Melvin John Blackburn; Defendant: Lady Kathleen Blackburn
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 87 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Contempt and Warrant of Arrest
- Outcome
- application dismissed with costs
- Judges
- CW Meoli
- Legal Topics
- Contempt of Court, Execution of Judgment, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lord Melvin John Blackburn
Plaintiff
Lady Kathleen Blackburn
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Contempt and Warrant of Arrest
Legal Issues
- 1 Whether the Defendant is in contempt of court for disobeying a consent order recorded on 8th September, 2011.
- 2 Whether the Plaintiff is entitled to a warrant of arrest against the Defendant for alleged non-payment of KES 1,000,000.
- 3 Whether the Plaintiff's application is properly for contempt or is in substance an application for execution of judgment.
Ratio Decidendi
The court found that the Plaintiff's application for contempt and a warrant of arrest was, in substance, an attempt to enforce payment of a monetary sum arising from a consent order. The court held that such enforcement should be pursued through extraction of a decree and commencement of execution proceedings before the Deputy Registrar, not through contempt proceedings. The court emphasized that contempt is not the appropriate remedy for disputes over payment or accounting under a judgment or consent order. Accordingly, the application was dismissed with costs to the Defendant.
Court Disposition
application dismissed with costs
Orders
- The Plaintiff's application dated 21st September, 2011 is dismissed with costs.
- The Plaintiff is advised to extract the decree and commence execution proceedings before the Deputy Registrar.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL SUIT NO. 87 OF 2007 (OS
LORD MELVIN JOHN BLACKBURN.............PLAINTIFF
VERSUS
LADY KATHLEEN BLACKBURN …...........DEFENDANT
RULING
The Plaintiff's application filed on 21st December, 2011 is brought under Section 1a, 1B, 3A, 63(e) of the Civil Procedure Rules, inter alia. It is seeking leave to cite the Defendant for contempt of court and a warrant of arrest against her to show cause why she should not be committed to jail for disobedience of a court order. The application is supported by the affidavit of the Plaintiff, and opposed through a replying affidavit by the Defendant.
The subject matter of the application is the consent order recorded by the parties on 8th September, 2011 before the Deputy Registrar. Prior to this date, parties had filed several applications, including one by the Defendant seeking to stay execution of the judgment of Omondi J. delivered on 28th October, 2009.
I have now read the affidavits filed with regard to the instant application, the proceedings herein and the detailed consent recorded between the parties on 8th September, 2011. That consent in my opinion was recorded in execution and or mutual modification of the judgment of Omondi J. The consent went further to quantify various payments to be made in furtherance of the judgment.
It would appear that the Plaintiff is now aggrieved that a sum of shs. 1Million due to him from the Defendant is still outstanding. This court cannot determine such matters without a proper taking of accounts. In my considered view the present application is a disguised application for execution of the judgment herein.
The proper course of action is for the Plaintiff to extract the decree and commence execution proceedings before the Deputy Registrar in the usual way. For these reasons I decline the Plaintiff's application dated 21st September, 2011 and dismiss it with costs.
Delivered and signed at Malindi this 4th day of November, 2013 in the presence of Mr. Mwadilo for the Plaintiff. No appearance for Defendant.
C. W. Meoli
JUDGE