[2013] KEHC 3572 (KLR)
The court found that the applicant failed to comply with the mandatory procedural requirements for commencing contempt proceedings. Specifically, the applicant did not file the required supporting statement and affidavit verifying the facts, failed to provide proof of personal service of the court order on the 2nd...
Source-derived case information.
- Citation
- [2013] KEHC 3572 (KLR)
- Parties
- Respondent: Francis Mungai Njiraini (Deceased); Applicant: __MISSING__; Respondent: 2nd Respondent
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 932 of 2012
- Procedural Posture
- Succession Cause / Ruling on Ex Parte Application for Leave to Commence Contempt Proceedings
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Contempt of Court, Leave to Commence Proceedings, Service of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mungai Njiraini (Deceased)
Respondent
__MISSING__
Applicant
2nd Respondent
Respondent
Procedural Posture
Succession Cause / Ruling on Ex Parte Application for Leave to Commence Contempt Proceedings
Legal Issues
- 1 Whether the applicant has met the procedural requirements for leave to commence contempt proceedings against the 2nd respondent.
- 2 Whether there is sufficient evidence of service and penal notice endorsement of the court order allegedly disobeyed.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedural requirements for commencing contempt proceedings. Specifically, the applicant did not file the required supporting statement and affidavit verifying the facts, failed to provide proof of personal service of the court order on the 2nd respondent, and did not show that the order was endorsed with a penal notice. These omissions are fatal to the application, as strict compliance with procedural rules is necessary in contempt proceedings due to their quasi-criminal nature. Consequently, the application for leave to commence contempt proceedings was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 25th July 2012 for leave to commence contempt proceedings is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Succession Cause 932 of 2012 [if gte mso 9]><xml>
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IN THE MATTER OF THE ESTATE OF FRANCIS MUNGAI NJIRAINI -(DECEASED)
RULING
The application dated 25th July 2012 seeks leave to commence contempt proceedings against the 2nd respondent.
The procedure for obtaining leave is set out in Order 52 rule 2 of the Rules of the Supreme Court of England. The application must be made exparte to a judge in chambers, and must be supported by a statement setting out the time and description of the applicant, the name, description and address of the person sought to be committed and grounds on which committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on. I note that no statement was filed in this case and there is therefore no affidavit verifying the facts relied on.
The gist of contempt proceedings is disobedience of a court order. For the purpose of determining whether to grant leave or not, the order allegedly disobeyed must be identified, and evidence provided to demonstrate that the person against whom committal is sought was aware of the order. Evidence must also be provided of the alleged acts of disobedience. In this case there is evidence that an order which it is alleged that the 2nd respondent has breached was made on 23rd May 2012. However, there is no proof that the same was personally served on him. There is also no proof that the same was endorsed with a penal notice as required by the law.
I am of the view that the application dated 25th January 2012 does not meet the standard required for an application for leave to commence contempt proceedings. I will therefore dismiss the same with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 10th DAY OF May, 2013.
W. M. MUSYOKA
JUDGE
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