[2010] KEHC 3756 (KLR)
The court found that the applicant had complied with all legal requirements for proving contempt: a clear and unambiguous order was issued, personally served on the defendant, and endorsed with a penal notice. The defendant was shown to have had proper notice of the order and nonetheless breached it by interfering...
Source-derived case information.
- Citation
- [2010] KEHC 3756 (KLR)
- Parties
- Plaintiff: Mary Wangari Gichuki; Defendant: John Kiarie Gichuki
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 160 of 2006
- Procedural Posture
- Civil Case / Ruling on Contempt Application
- Outcome
- application for contempt allowed; defendant found in contempt
- Legal Topics
- Contempt of Court, Injunction Enforcement, Personal Service of Orders, Breach of Court Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Wangari Gichuki
Plaintiff
John Kiarie Gichuki
Defendant
Procedural Posture
Civil Case / Ruling on Contempt Application
Legal Issues
- 1 Whether the defendant disobeyed a valid court order restraining him from interfering with the suit property.
- 2 Whether the requirements for proving contempt of court were satisfied.
- 3 Whether the defendant should be punished for contempt of court.
Ratio Decidendi
The court found that the applicant had complied with all legal requirements for proving contempt: a clear and unambiguous order was issued, personally served on the defendant, and endorsed with a penal notice. The defendant was shown to have had proper notice of the order and nonetheless breached it by interfering with the suit property and threatening the applicant. The breach was proved beyond reasonable doubt. Accordingly, the court held the defendant in contempt and imposed a custodial sentence or, in the alternative, a fine.
Court Disposition
application for contempt allowed; defendant found in contempt
Orders
- The defendant is sentenced to serve sixteen (16) months in prison or to pay a fine of Ksh. 10,000/=
- The defendant to pay costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Civil Case 160 of 2006
MARY WANGARI GICHUKI .................................PLAINTIFF.
VERSUS
JOHN KIARIE GICHUKI ...................................DEFENDANT.
R U L I N G.
By a chamber summons dated 17th June, 2009, pursuant to the provisions of order XXXIX Rule 2A (2) of the Civil Procedure Rules and section 3 A and 63 (c) of the Civil Procedure Act and section 5 of the Judicature Act, the applicant seeks orders.
1. THAT, this application be certified as urgent and the same be fixed for hearing on a priority basis.
2. THAT, the defendant/respondent John Kiarie Gichuki be summoned to appear in court for the hearing of the application for committal to jail.
3. THAT, this honourable court be pleased to punish the defendant/respondent for disobeying a court order made on 19/3/2009 and issued on 9/4/2009 by committing the defendant/respondent to prison for a term to be fixed by the court.
4. THAT, the defendant do pay costs of the application.
The application is based on the grounds:-
(a)ON19/3/2009 the defendant was by a court order restrained from interfering with the suit property in any way.
(b)THEdefendant was personally served on 15/4/2009.
(c)THEdefendant/respondent has not complied with a court order.
(d)THEdefendant/respondent has threatened to unleash violence on the plaintiff and he has on occasion physically confronted the plaintiff upon her entering the suit property.
The application is further supported by the annexed affidavit of Mary Wangari Gichuki sworn on this 17th day of June, 2009.
On behalf of the applicant, it was argued that there is a court order exhibited as “MWG1” dated 9th April, 2009 restraining the defendant, John Kiarie Gichuki, from dealing in the suit property.
Armed with the said court order, Mary Wangari Gichuki personally accompanied the court process server Godfrey Masinde Sitati to the home of the defendant. The applicant pointed out to the respondent to the court process server who duly served the defendant. |the defendant declined to sign on the copy to be returned to the court exhibited as “MWG2”.
On 16th April, 2009 applicant was to plough the suit property but the defendant chased her away, and threatened to cut her with a panga. The applicant reported this incident to Moi’s Bridge Police station where it was entered in the occurrence book and police officers were ordered by the said station’s OCS to arrest the respondent as per exhibit “MWG 3”
It was the applicants contention that by his conduct the respondent has breached a court order dated 9th March, 2009 and should be accordingly punished.
The law on contempt of court is now well settled. The power to deal with contempt of court is provided for under section 5 of the Judicature Act (Cap 8) Laws of Kenya and order XXXIX rule 2 (3) of the Civil Procedure Rules. The Kenyan courts have to follow the procedure and practice in England. The English position is that as a general rule, the order of court requiring a person to do or abstain from doing any act may be enforced by committing him for contempt unless a copy of the order has been served personally on the person required to do so or abstain from doing the act in question. The copy of the order served must be personally on the person required to do or abstain from doing the act in question. The copy of the order must be endorsed with a notice informing the person on whom the copy is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it. This requirement is important because the court will only punish as a contempt of breach of injunction if satisfied that the terms of the injunction was clear and unambiguous, that the defendant had proper notice of the terms and that the breach of the injunction has been proved beyond reasonable doubt. (SEE MWANGI WAGONDU VS. NAIROBI CITY COMMISSION (CIVIL APPEAL NO. 95 OF 1988) (UNREPORTED) AND JACOB ZEDEKIA OCHIRU & ANOTHER VS. GOERGE AURA OKAMBO & 4 OTHERS (CIVIL APPEAL NO. 38 OF 1989 (UNREPORTED).
I have scanned through the application and the annextures thereto. Having done so, I am of the persuasion that all that the applicant was required to do by law was done. Accordingly the contempt was proved beyond reasonable doubt. I sentence the respondent to serve sixteen (16) months in prison or to pay a fine of Ksh. 10,000/=.
Dated and delivered at Kitale this 3rd day of February 2010.
N.R.O. OMBIJA.
JUDGE.